Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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This case will be of interest to capacity assessors, practitioners, healthcare providers and commissioners because it provides further guidance on the Court of Protection’s approach to capacity and best interests in relation to clinically assisted nutrition and hydration for victims of abuse and trauma.
Avon and Wiltshire Mental Health Partnership v WA & Anor  EWCOP 37
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:
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.