A Court of Protection judge has made important observations about the need to distinguish between a reluctance to answer questions and an inability to do so, writes the CoP team at 39 Essex Chambers.
In QJ v A Local Authority  EWCOP 3 and  EWCOP 7 Hayden J was considering the situation of an 87-year-old man with vascular dementia challenging a DoLS authorisation under s.21A. The man was, in the run up to the first hearing (reported at  EWCOP 3), on hunger strike, but things changed on the morning of the hearing so that it appeared that he might have changed his mind (whether capacitously or not). Hayden J therefore directed a further assessment of P’s capacity.
By the time of the second hearing (reported at  EWCOP 7), the plan was (1) administering of Fortisip three times per day, with 750 to 1,000 calories per day, which would still be sub-optimal but not immediately life-threatening; (2) weighing of QJ twice a week; (3) discussing again with QJ, within a week, his present situation and a plan to discharge him back to the nursing home; (4) no readmission of QJ to hospital, once discharged back to the care home, if there he refuses to accept food or water.
There was also further evidence as to QJ’s capacity from his treating physician, Dr B, whose conclusion was that:
He did not seem to understand the gravity of what might happen to him if he did not eat and would barely talk although he was capable of speaking. It may be that he simply did not want to talk to me but my judgment was that he did not really understand the consequences of his action and could not communicate any view other than by occasionally shaking his head. I did not feel that he had any real depth of understanding of his situation. I could not get him to describe why he was in hospital, nor could I get him to even repeat minimally what the concerns about him were. I did not sense any evidence of him being able to weigh up or retain the information given to him.
Hayden J noted that:
20. Dr B was entirely aware that others had regarded QJ’s response and resistance to eating and drinking as a form of “silent protest”, but he commented that a refusal to accept food and drink is “a common feature of the sort of illness that QJ suffers from” and is one that he had encountered many times in the course of his work.
21. I have struggled to understand those conclusions, not only in the light of the totality of the available evidence, but also in the context of Dr B’s own observations. It is undoubtedly a difficult situation when an individual suffering from dementia chooses not to respond to certain questions. However, we do know that QJ has chosen not to eat for many weeks. We know that prior to that there had been a significant decline in his food consumption and we know that presently, at hospital, he is taking miniscule amounts of food and Fortisips as well as water.
Hayden J recognised:
23. […] Dr B’s experience and expertise, and entirely accept his view that a refusal to accept food and drink might well be a common feature of the sort of illness that QJ suffers from, I am required to evaluate QJ’s capacity in relation to these specific issues, and I do so. I am highly conscious 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.
25. All parties in this case agree that evaluating capacity on this specific issue is finely and delicately balanced. But ultimately, I have to be satisfied, on the balance of probabilities (s. 2(4) MCA), that the presumption has been rebutted. I am unable to reach that conclusion.
Hayden J observed that “[i]t is potentially significant, and certainly interesting, that the agreed medical consensus as to the way forward accords exactly with what QJ himself expresses.” Whilst it was unnecessary for him to evaluate QJ’s best interests because QJ should be regarded as capacitous, he considered it was right that he acknowledged that “QJ, in conjunction with the doctors, has been able to put together a plan which both respects his autonomy and has regard to his dignity.”
Such cases as QJ’s are very fact specific, but Hayden J’s observations about the need to distinguish between a reluctance to answer questions and an inability to do so are of wider importance. Similarly, of wider import are Hayden J’s observations in the first judgment that:
16. […] If it were determined that QJ had capacity to decide whether to receive nutrition, irrespective of which decision he made (i.e. either to take nutrition or to refuse it), does the case, in those circumstances, need to come back before the Court? Ms Butler-Cole took me to the Guidance of this Court: 'Applications relating to medical treatment' issued 20th January 2020 and in particular to paragraph 8 which is headed 'Situations where consideration should be given to bringing an application to court'. In that paragraph, the following is stated:
"If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:
finely balanced, […]
Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required."
17. Ms Butler-Cole considers that this may very well be a "finely balanced decision" which in and of itself might well have required an application to the court. But she submits, and I agree, that where there is already an extant application in relation to the central issue, then the matter should only be concluded within the proceedings of the Court and not subsequently left to clinical decisions. As I have said, I agree with that submission. (emphasis in original)
In other words,  if a case about medical treatment is already before the court, then decisions relating to that treatment should be taken by the court, rather than by the clinicians.
This article was written by the Court of Protection team at 39 Essex Chambers.
 And as presaged in the BMA/RCP guidance as to CANH decision-making, which had noted (page 11, para. 46 that “[i]f an immediate decision is needed about whether or not to re-start CANH, if the feeding tube becomes blocked or dislodged, whilst a case is under consideration by the court, an urgent application should be made to the court, out of hours if necessary.”