Case summary: Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37

Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37

• Serious Medical Treatment
• Capacity
• Mental Capacity Act 2005
• Best Interests
• Mental Health
• Withdrawal of clinically assisted nutrition and hydration

This unusual case underlines the difficulties for practitioners in reconciling the right to choose with the ability to do so. It focuses very much on the “space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates”.

Several key practical points were raised:

• In assessing capacity, it is necessary to be carefully consider whether P is able to weigh the relevant information and consider the decision globally rather than in individual components.
• Where, as here, the issue of capacity was finely balanced, the presumption of capacity still applied but so too did the court’s obligation to analyse the evidence rigorously.
• Where it is proposed to treat P against their expressed wishes (e.g. nasogastric feeding without P’s consent), it is necessary to consider whether there is a real risk of re-traumatising Ps with a history of abuse/trauma. This might make any treatment against P’s will inappropriate and potentially harmful, and therefore not in P’s best interests.
• Remote hearings can serve actively to promote the participation of P in the court process. In this case, Mr Justice Hayden was able to visit WA remotely in his hospital bed with his parents in attendance, and WA was able to give and hear evidence clearly and comprehensively.
• If the decision as to whether P has capacity is very finely balanced, P’s wishes and feelings may be given great weight or be determinative. The Court of Protection has recently emphasised the centrality and importance of P’s autonomy.

The case concerned a finely balanced issue over whether WA was capable of deciding to refuse food and fluid, and, if not, whether it should be imposed on him.

WA had expressed an intention not to accept any further nutritional intake after 9 July 2020 as he wanted to die. This refusal to eat was a maladaptive coping strategy in response to psychological distress, linked to the belief that the Home Office had assigned him an incorrect date of birth. 

Mr Justice Hayden concluded WA was able to understand and retain information relevant to the decision to accept nutrition and hydration. However, he could not weigh the relevant information and consider the decision to accept nutrition and hydration globally, due to his rigid thinking and preoccupation in relation to his date of birth.

However, Mr Justice Hayden then ruled that on balance it was not in WA’s best interests to receive clinically assisted nutrition and hydration against his will. Any degree of coercion, albeit motivated to preserve WA’s life, might be retraumatising and trigger a relapse of WA’s PTSD and depression.

• In assessing capacity, it is necessary to be carefully consider whether P is able to weigh the relevant information and consider the decision globally rather than in individual components.
• Where the decision that P lacks capacity is so finely balanced so as to be on a knife edge, P’s consistently expressed wishes and feelings may be given great weight or be determinative in coming to decision regarding best interests.
• Even if P’s refusal to accept nutrition and hydration is incapacitous, the Court may still conclude that it is in P’s best interests to allow P to refuse it. This will depend on the specific facts of the case. In this case, WA had a complex and tragic history of abuse and trauma. WA’s treating team were encouraged and permitted to seek to persuade WA to accept nutrition and hydration in a stronger way that they might feel uncomfortable doing with a person who was capacitous.
• The preservation of P’s autonomy is of central importance in Court of Protection applications, but will be even greater where the specific circumstances of P detail a history of having that autonomy taken away from them.