Judgment concerning whether QJ, an 87 year old suffering from vascular dementia, has capacity regarding the nature and extent of his medical treatment.
QJ had lived in care homes since August 2019 and it was agreed that he lacked capacity to determine where he should live and the care he should have. At an earlier hearing Dr A, a consultant in old age psychiatry, expressed the view that QJ has capacity to conduct proceedings, decide about nutrition and hydration and decide about medical treatment, but lacks capacity in relation to residence and care. At a subsequent hearing, the treating consultant, Dr B, related in a written statement that when talking to QJ about whether he would have nasogastric tube inserted QJ shook his head but Dr B still went on to state that QJ “did not seem to understand the gravity of what might happen to him if he did not eat” even though Dr B was satisfied that QJ did not want the tube and understood that there were significant questions relating to his eating and drinking.
Against that background the Vice President, Hayden J, reminds himself at [23-24] that
“the presumption of capacity is a fundamental safeguard of human autonomy. It requires cogent, clear and carefully analysed information before it can be rebutted.
24. It is important to emphasise 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. It should not be construed from this that he is unable to. There is a good deal of evidence which suggests that this is a choice.”
He therefore concludes that the presumption has not been rebutted. He also notes at  that it was potentially significant that the agreed medical consensus as to the way forward accorded exactly with what QJ himself expressed.
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