Q, Re [2022] EWCOP 6

Application seeking declarations that Q lacks capacity to litigate, make decisions about her medical treatment and had lacked capacity when making an advance decision to refuse treatment.

Q is a 50 year old woman with bulimia nervosa and a diagnosis of Emotionally Unstable Personality Disorder. She had been in and out of mental health units since her late twenties and was now suffering from low potassium levels that left untreated could be life-threatening. In January 2021 she was detained under s3 of the MHA to ensure compliance with medical treatment and discharged 8 months later under a proscriptive Community Treatment Order. In her oral evidence to the court, she said that she found the regime set out in the order significantly affected her daily life and that she is deeply resistant to further hospitalisations.

In this judgment, Hayden J reviews Q’s evidence to the court and notes she was “an eloquent, articulate woman who told me what she wanted to say in well-reasoned and carefully constructed terms”. He then goes on to find that the answers to all three questions was that she had capacity. Of particular note is his discussion on the weight often accorded to  Mostyn J’s comments in An NHS Trust v P

“that it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation”

Hayden J notes that “the proposition is not ubiquitous, in the sense that the two tests should be regarded as synonymous” so that while Q may make unwise decisions, that does not mean she lacks capacity and that, if she decided not to comply with medical advice, while her choice “may be objectively unwise, it is hers and not mine. I must respect her autonomy.”

Read the judgment on Bailii.