Case Summary: QJ v A Local Authority & Anor [2020] EWCOP 7

• Mental Capacity Act Assessments
• P’s lack of engagement

• The burden is on the person asserting that P lacks capacity to demonstrate P’s inability to make decisions rather than on P to demonstrate ability.
• Be cautious of not making unjustified assumptions of incapacity, particularly by reference to a condition or aspect of behaviour.
• P’s reluctance to answer questions should not automatically be construed as ‘inability’. It may be a choice by P rather than his reluctance and an assessor must justify their assertions in this regard.

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 -

• QJ would “barely talk”;
• He did not communicate other than occasionally shaking his head;
• The treating clinician “did not sense any evidence of him being able to weigh up or retain the information given to him”;
• A refusal to eat/drink was “a common feature of the sort of illness that QJ suffers from”.

The Judge considered that QJ did have capacity to make decision on medical treatment, emphasising the following:

• The general principle of the presumption of capacity “is a fundamental safeguard of human autonomy. It requires cogent, clear and carefully analysed information before it can be rebutted”;
• Assessors should not construe a behaviour (reluctance or refusal to answer questions) with an inability to do so;
• Assessors must be careful not to make unjustified assumptions based on a particular behaviour or condition, in particular where there is evidence indicating that it may be P’s choice to behave in a particular way;
• To rebut the presumption of capacity requires evidence on the balance of probabilities;
• If the case is already in Court, then the Judge should make decisions relating to capacity to decide on medical treatment rather than the clinicians.

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:

• To make decisions regarding nutrition and hydration i) orally and ii) through artificial means;
• To make decisions about medical treatment and decisions about being admitted to hospital.

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:

• QJ would shake his head, but say nothing and have a blank expression, a pattern which had run through his records and had been observed previously by care home staff, clinicians and legal representatives.
• The treating consultant took that response to mean that QJ seemed to understand the questions, even though he was not engaging in speech.
• The treating consultant noted that QJ seemed fully alert and was looking at him, but did not speak when it was explained to him that he was likely to die if he did not eat.
• The treating consultant was aware that others had regarded QJ’s response and resistance to eating and drinking as a form of “silent protest”, but he commented that a refusal to accept food and drink is “a common feature of the sort of illness that QJ suffers from” and is one that he had encountered many times in the course of his work

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.

•  It is a cardinal principle of the Mental Capacity Act 2005 that assessors must be ‘fastidious’ to evaluate capacity on an issue specific basis.
• The presumption of capacity is a fundamental safeguard of human autonomy. It requires cogent, clear and carefully analysed information before it can be rebutted.
• A reluctance by P to answer questions should not be seen as an inability to do so when there is evidence to suggest that P may be ‘choosing’ to give no answer.