QQ is now 26 years old and has diagnoses of emotionally unstable personality disorder and schizophrenia. The treating clinician found that QQ lacked capacity to make decisions on the issue of her treatment in relation to anticoagulation medication.
Additionally, QQ suffers recurrent episodes of deep vein thrombosis which cause her pain and have the potential to cause more serious consequences, such as pulmonary embolisms which could ultimately lead to death.
Medical experts concluded there were three possible options for QQ:
- that she received anticoagulant medication by injection;
- that she received a new oral form of medication in respect of which there is now an antidote that can very quickly reverse the anticoagulant effects of that medication should the need arise - if, for example, QQ were to bleed; or
- there is a surgical procedure to insert a filter into QQ to prevent any pulmonary embolism reaching the lungs.
Option (3) is clearly the most invasive option and the advice to QQ’s treating clinician was to fully explore (1) and (2) first. There was discussion that the perceived risk very much depended on the risk of bleeding and whether QQ self-harmed, as she had done in the past. If the risk of bleeding was low then the use of prophylactic anticoagulation treatment either by injection or by oral tablet form was recommended.
The court agreed that although QQ still has a current intention to self-harm, the risk of self-harm actually occurring is low and the care regime has therefore been successful. On this basis the recommendation was that QQ be prescribed anticoagulant medication on a prophylactic basis. On or about 26 February, QQ told her treating clinician that because her leg was painful she would agree to take tablets and to take medication.
The application was made for QQ to receive medical treatment.
The court accepted that QQ did not have capacity in August 2015 when she made advance decisions regarding her medical treatment and therefore concluded that this decision was not valid or lawful.
Further, the fleeting expressions by QQ that she would accept treatment would not of themselves invalidate the otherwise valid expression by QQ (pursuant to section 25(2)(c) of the Mental Capacity Act 2005).
The Judge was able to briefly interview QQ who told him: “that her acceptance or not of the need for her to receive anticoagulant medication varied and depended again upon her mood”. This was interpreted to mean: “the difficulties and belief systems that she has”.
The final conclusion was as follows:
“I am in no doubt that it is in QQ’s best interests to receive anticoagulant medication (on a prophylactic basis). I am satisfied that because of QQ’s mental health difficulties and her belief systems she is not able, now or in the past, to weigh the information that she receives. She is not able to weigh and reach a consistent conclusion on the medical need for her to receive this medication. Nor is she able to remain consistent in her ability to cooperate with the clinicians treating her, whether in relation to taking medication orally or by way of injection.”
In the first instance, medication will be taken orally in tablet form. However, the court considered that if these are not taken consistently then injections would be necessary to avoid the risk of future episodes of DVT.
Keehan J carefully considered both the expert advice, as well as the comments made by QQ directly to him during his visit to see her in hospital. This is an illustration of how important it is to consider what is in the best interests of P, in light of all the available evidence.
Section 25(2)(c) of the Mental Capacity Act 2005 sets out:
An advance decision is not valid if P--
(c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.
This judgment has again raised the question of how section 25 (above) should be interpreted. Firstly, the act does not specify what P has to do and whether this must be actions, or whether words alone may be sufficient. The reader is left to speculate. Secondly, it remains unclear whether the person must have lacked capacity both at the time of making the advance decision and at the time the inconsistent event occurs. If, in fact, P had capacity when initially making the advance decision and subsequently loses capacity, does this alter the approach of the court?
Keehan J briefly addressed the position in relation to QQ’s capacity, but declined to comment further on the correct interpretation of section 25. This question is still hanging in the air, but this case does provide some guidance for how courts may address the issue in due course.
Read the full text of the judgment on Bailii