P, Re [2021] EWCOP 27

Hearing to decide if the P had litigation capacity.

The P has been diagnosed with diabetes, paranoid schizophrenia and HIV. Since 2018, P has refused to take the antiretroviral medication she has been prescribed to treat her HIV. P has fixed delusional beliefs and ongoing auditory command hallucinations, and hears God telling her not to take her HIV medication, but rather to pray. P has also previously seen snakes emerge from her HIV medication. The NHS Trust sought orders and declarations that P lacked capacity to decide whether to take the HIV medication; that it was in P's best interests to take her HIV medication; and, inferentially, that she should be made to do so. At a hearing in February the P's consultant psychiatrist said that the P had litigation capacity despite the fact that she does not have subject matter capacity. However, in March 2021 P's care coordinator concluded that she did not have litigation capacity.

The court concluded that the P does not have litigation capacity. The correct decision by the P's consultant psychiatrist about subject-matter incapacity should have led, almost inevitably, to an equivalent decision being made by her about P's capacity to conduct litigation about that very subject matter.

Read the full text of the judgment on Bailii