Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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This case contains useful guidance for assessors on capacity assessments where there is a lack of engagement from P. It is essential reading for anyone involved with capacity assessments.
|Case Summary: QJ v A Local Authority & Anor  EWCOP 7
In this case of an 87 year old man with a diagnosis of ‘advanced stage’ vascular dementia, the Judge considered whether QJ had capacity to make decisions regarding his medical treatment.
The Judge had received evidence from QJ’s treating clinician who concluded that QJ lacked capacity because -
The Judge considered that QJ did have capacity to make decision on medical treatment, emphasising the following:
QJ was an 87 year old man with a diagnosis of ‘advanced stage’ vascular dementia. Proceedings were brought by his litigation friend challenging a DoLS standard authorisation. QJ had consistently indicated that he did not wish to be in a care home and had been refusing food for several weeks.
QJ’s GP indicated that QJ had capacity to make decisions in relation to his medical treatment. The Judge noted in an earlier hearing (2020 EWCOP 3) that it was the GP’s view that QJ was more capacious than might appear on first impression.
A report produced for the court, under direction, by a consultant in old age psychiatry (Dr A) concluded that QJ had capacity to conduct proceedings and to make decisions in relation to nutrition and hydration and medical treatment, but lacked capacity in relation to decisions on residence and care. In an addendum report, Dr A concluded that QJ lacked capacity to conduct proceedings.
The Judge requested further evidence on QJ’s capacity from his treating consultant to address QJ’s capacity:
The Judge noted that the treating consultant’s assessment took place at the hospital, whilst Dr A had previously assessed QJ at his care home. The hospital setting for the treating consultant’s assessment put him at a disadvantage, being a less familiar and a more stressful environment.
The treating consultant noted the following:
The Judge accepted that this was an extremely difficult case and was conscious that it has been the subject of careful consideration and evaluation by all concerned.
The Judge explained that he had to be satisfied, on the balance of probabilities (s. 2(4) MCA), that the presumption of capacity had been rebutted. The Judge was unable to reach that conclusion.
In his conclusion, the Judge stated that lack of capacity cannot be established merely by reference to a person’s condition or an aspect of his behaviour which might lead others to make unjustified assumptions about capacity (s.2(3) MCA).
An aspect of QJ’s behaviour included his reluctance to answer certain questions. The Judge concluded that this reluctance should not be construed as an inability. In this case there was a good deal of evidence to suggest that this was a choice.