The Legal Test of Capacity and Best Interest Decisions in the Court of Protection

The case of United Lincolnshire Hospitals NHS Foundation Trust v Q [2020] EWCOP 27 concerns Q, a 57 year old with profound and lifelong learning disabilities, epilepsy, mobility difficulties and registered blind. Q has a 24-hour care package and her carers believe her to suffer from some form of autistic spectrum disorder. Q struggles to adjust to changes in the very rigid structure of her daily life and has rejected attempts to provide her with personal care, specifically dental hygiene.

I have summarised the events leading up to this hearing below:

1. In May 2018, a domiciliary visit was carried out by a dentist from the community dental service following concerns Q was experiencing dental pain and refusing food.
2. In November 2018, Q was referred to the maxillo-facial surgeons at the local hospital for a full dental clearance under general anaesthetic.
3. The surgery was scheduled for September 2019 however this had to be cancelled on the day of the operation, as Q had a prolonged seizure of around six minutes whilst getting ready to come to the hospital.
4. A best interest meeting was held in November 2019 and a second meeting in February 2020. Both meetings concluded that it was in Q’s best interests to undergo full dental clearance under general anaesthetic to relieve the pain and discomfort caused by periodontal disease and to receive sedation to facilitate her transfer to hospital to undergo such surgery.

The hospital asked two questions of Mr Justice Knowles, firstly, for a declaration as whether Q has capacity to refuse medical treatment, and secondly, to make decisions about her dental treatment, specifically whether;

1. Q should undergo full dental clearance under general anaesthetic and;
2. Q should receive intramuscular sedation to facilitate her transfer to hospital to undergo this dental surgery

Question One: Determining whether Q has capacity

Mr Justice Knowles first considered the legal test for determining capacity:

Sections 1 to 3 of the Mental Capacity Act (hereafter ‘MCA’) are all relevant here and sets out the principles by which capacity of those over the age of 16 is to be determined. s.1(2) MCA provides that the ‘burden is on the party asserting a lack of capacity to establish it on the balance of probabilities’.

Mr Justice Knowles considered a wealth of evidence from Q’s carers, sister and Dr A (an associate specialist in oral surgery) and was satisfied in this case, that on the balance of probabilities, Q lacks capacity to make decisions about her dental treatment. Mr Justice Knowles commented that it was:

‘Plainly evident that Q has no ability to understand the most basic of discussions about oral hygiene or dental treatment. She cannot, in my determination, understand, retain, use, or weigh any of the information relevant to the decision whether or not to have such treatment, specifically full dental clearance, or the sedation and transport necessary to carry out such treatment.’

Question Two: Determining what is in Q’s best interests

Secondly, Mr Justice Knowles then turned to the question of best interests and what factors are considered when making ‘best interest decisions’.

In assessing best interests, Mr Justice Knowles referred back to the earlier case of Re MB (An Adult: Medical Treatment) (1997) 8 Med LR 217, quoting specifically at 225:

‘The court is not limited to consideration of best medical interests, instead best interests   encompasses medical, emotional, psychological and social issues’.

In addition to this, Mr Justice Knowles helpfully set out the legal basis which must be considered when determining any question of best interests:

1. a) Any act done or taken in respect of a person who lacks capacity must be in her best interests: s.1(5) MCA.
2. b) The decision-maker must consider whether the purpose for which the act or decision is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action: s.1(6) MCA
3. c) The person making a best interests determination must consider all the relevant circumstances (s.4(2)) MCA, including:

(i) A person’s past and present wishes and feelings, so far as is reasonably ascertainable (s.4(6)(a)) MCA;

(ii) The beliefs and values that would be likely to influence the person’s decision if she had capacity (s.4(6)(b)) MCA;

(iii) The other factors that she would be likely to consider if she had capacity (s.4(6)(c)) MCA;

(iv) The views of family members and other engaged in caring for the person or interested in her welfare (s.4(7)) MCA.

1. d) The person making a best interest determination must, so far as is reasonably practicable, permit and encourage the person to participate, or improve her ability to participate, as fully as possible in any act done for her and any decision making affecting her: s.4(4) MCA.

Considering whether Q should undergo full dental clearance and receive intramuscular sedation to facilitate her transfer to hospital, Mr Justice Knowles weighed up Q’s specific previous behaviours and the consequences thus far, of refusing dental treatment:

2018. Q was diagnosed with severe periodontal disease in November 2018.
2019. Q will not tolerate basic mouth care and her carers have encountered increasing difficulties brushing her teeth.
2020. Q is experiencing pain and discomfort in consequence of her untreated periodontal disease, such as increased salivation and refusing food, resulting in 10.5 kgs of weight loss between March 2019 and March 2020.

Mr Justice Knowles considered the risk of her disease and tooth decay worsening and noted if left untreated, this is likely to increase her dental pain, salivation, and refusal of food. This continuance of refusing dental treatment would in turn put Q at risk of malnutrition, dehydration, and increased seizures, since her epilepsy medication is administered with her food. Given Q’s support workers and sister’s support for the hospitals proposals, Mr Justice Knowles accepted it was in Q’s best interest to undergo full dental clearance under general anaesthetic.

Going further, as Q has previously been unsettled when preparing her to attend the hospital, Mr Justice Knowles agreeing with the hospitals plan, accepted the proposal for Q to undergo intramuscular sedation with ketamine to minimise her distress.

So what does this all mean?

In this case, the hospital asked Q to undergo a procedure that Q did not want, nor understand, however in the interests of Q’s health and well-being, it was decided Q did not have capacity to make this decision. Due to Q’s continued refusal to practice good dental hygiene, Q suffering dental pain and refusing food, it was in Q’s best interests to, on this occasion insist Q undergoes treatment.

I read this judgement with interest, particularly the considerations given to the opinions of the Q’s support workers and sister. As all were consistent with the proposals put forward by the hospital, Mr Justice Knowles did not have any conflicting opinions to consider in this case. However this is not to say that, should a similar set of circumstances arise, conflicting opinions as to a protected party’s best interest, would not play a key role.

Should you require assistance on this specific issue, please contact the Court of Protection team at Anthony Gold Solicitors.

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