NHS Surrey Heartlands Integrated Care Board & JH [2023] EWCOP 2

Application for a declaration regarding an advance decision and liability for withholding any treatment from JH

JH, who had been diagnosed with Asperger’s Syndrome (now ASD) in 1995, had made a declaration to the effect that he wished to regulate or even refuse treatment relating to his long-standing abdominal pains. He had been the subject of extensive medical investigation as a child and, as a result, had  progressively refused treatment or further investigation. He was now not eating properly - save for drinking Fortisips - leaving him emaciated and his immune system compromised: he would be a high risk if he caught Covid. His long standing GP, Dr W, testified to his decline in weight but also JH’s capacity to have made the advance decision in 2017.  

The Vice President, Hayden J, agreed that JH had capacity in 2017 to have made the decision and emphasised at [9]:

“there is no obligation on a patient, who has decision-making capacity, to accept life-saving treatment. Doctors are not obliged to provide treatment and, perhaps more importantly, are not entitled to do so in the face of a patient’s resistance.”

He also notes that the decision was carefully constructed, JH had discussed it at length with relatives and that it was his authentic voice. JH’s belief that his stomach pain were related to his Asperger’s, while misconceived, did not equate with lack of capacity. Furthermore, if Hayden J had found him to have lacked capacity, he would not have forced further investigations as JH's strength of feelings meant that any such demand would  “be brutally corrosive of JH’s autonomy“. He therefore granted the declaration sought. 

Read the judgment in full on The National Archives