Lacking capacity for certain decisions – East Lancashire Hospitals NHS Trust v GH and what clinical negligence practitioners can learn from it

In this blog post, Henry King discusses the issue of capacity to consent to medical treatment, in light of comments made by the Court of Protection in the recent case of East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18.

In an arguably routine decision for the Court of Protection (save, perhaps, for its out of hours nature), MacDonald J restated the principles applicable to a decision assessing capacity and best interests treatment, when such treatment urgently needs to be administered to a patient who lacks capacity, and who does not consent.

The Case

GH suffers from severe anxiety, depression and agoraphobia. As a consequence of these conditions, with full capacity, GH decided to have a home birth. Whilst she had capacity, she agreed to admission to hospital in the event that admission was medically required during her labour. However, due to her agoraphobia, she had declined any antenatal care outside the home including all routine ultrasound scans and growth scans.

After 72 hours of labour, it became clear that GH suffered an obstructed labour, thus requiring urgent in-patient obstetric treatment and a possible emergency C section. However, C refused to agree to this plan. Unfortunately, GH’s anxiety and agoraphobia became the dominant feature in her decision making and a capacity assessment revealed that she lacked capacity.

Accordingly, the Trust issued an urgent application to move GH to hospital. At the hearing and following questions in evidence, the Official Solicitor agreed. After the hearing, but before the arrangements authorised by the court could be put into place, GH gave birth to a healthy baby boy.

Capacity and Clinical Negligence

The decision of McDonald J at paragraph 40 provides a useful description of the court’s concerns in respect of an individual who potentially lacks capacity to consent to medical treatment.

“40. … it is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo. It is a graver step still compel, possibly by means of the use of sedation and reasonable force if further gentle persuasion fails, the removal of a person from their home to ensure their attendance at hospital for such medical treatment. Parliament has conferred upon the court jurisdiction to make a declaration of such gravity only where it is satisfied that the patient lacks the capacity to decide whether to undergo the treatment in question and where it is satisfied that such treatment is in that patient’s best interests”

An individual may lack capacity in general, or as in this case, lack capacity to make a certain decision at a certain time. As can be seen from the judgment, the Court of Protection adjudicates capacity with a fine toothcomb.

Whilst such a detailed approach might not feature in clinical negligence cases, the court, if required to do so, will make findings on whether a patient had capacity to consent to a specific medical treatment at any given time. In Connolly v Croydon Health Services NHS [2015] EWHC 1339 (QB), HHJ Collender QC held that Mrs Connelly did lack capacity (at [118]), yet had not withdrawn consent to the procedure being undertaken (see [116]). This might arguably be seen as contradictory. However, as in the case if GH, this was a time-limited, emergency situation:

“120. … It was imperative that time was not wasted in detailed explanation to a patient affected by excruciating pain and drugs as to the procedure upon which he was about to embark. In the light of the authorities outlined above I do not consider that Dr Mechery or any of the hospital staff were in breach of duty in undertaking the course of treatment that they did once the occlusion of the LAD was detected.”

The judge further found that, in any event, Mrs Connelly would have accepted the advice of those treating her and “the only realistic conclusion … is that she would have consented to the angiography continuing” at [124].

Capacity and Best Interests

However, this does not give doctors / practitioners carte blanche in respect of matters relating to capacity. Such matters are a question of fact and degree and must be subject to dynamic risk assessment (and indeed, a capacity assessment, if required).

Capacity

The full contents of the Mental Capacity Act 2005 and the principles underlying them in respect of capacity are explained between paragraphs 19-21 of GH.

In particular, sections 1-3 of the Mental Capacity Act 2005 address the meaning of capacity and the meaning of lacking capacity, and these sections are set out at the end of this blog post.

From paragraphs 19-21 of GH, three key points arise:

  1. Determination of capacity is always ‘decision specific’, and in relation to the decision in question at the time. This is highlighted by both GH and Connelly.
  2. The presumption is that an individual has capacity, and an individual is not to be treated as unable to make a decision because they make an unwise decision. The test for demonstrating capacity is not an unduly high one.
  3. There must be a causal link between the inability to make the decision and both the diagnostic test and the functional test as set out in ss.2 & 3 MCA 2005.

Best Interests

The full contents of the Mental Capacity Act 2005 and the principles underlying them in respect of best interests are set out between paragraphs 22 – 28 (spanning a full three and a half pages of the judgment). However, it is useful to highlight three points:

  1. The court must consider all the circumstances of the case when looking at treatment in best interests, and there are few, if any, bounds on what will be relevant to a welfare determination. This includes not only the patient’s medical welfare, but also their social and psychological welfare.
  2. There is a very strong presumption in favour of taking all steps to prolong life, but the obligation is not absolute. On some occasions, the sanctity of life may have to take second place to human dignity.
  3. In considering the above, the patient’s previous and present wishes, and their beliefs and values, will all have a part to play.

Comment

In some clinical negligence cases, the issue of a patient’s capacity to consent to a specific medical intervention may arise. This could be during the course of treatment, as in Connolly, or where there is a sudden change in the patient’s mental or physical condition.

When considering this issue, it is suggested that practitioners might wish to reflect on the following points:

  • Did the patient have capacity at the material time, looking at the factors in ss1-3 of the Mental Capacity Act 2005 (see Addendum below)?
  • Is this a treatment that the patient previously consented to when they had capacity?
  • Would the patient have accepted medical advice advocating that this treatment occurred – had they done so in the past in respect of other, related treatment?
  • Would this treatment be seen as contrary to the patient’s beliefs and values by the patient themselves?
  • Is the situation an emergency “life or death” situation such that medical treatment is required to preserve/prolong life?

Addendum

The relevant parts of sections 1-3 of the Mental Capacity Act 2005:

1 The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

[…]

2 People who lack capacity

(1)  For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)  It does not matter whether the impairment or disturbance is permanent or temporary.

(3)  A lack of capacity cannot be established merely by reference to—

(a)  a person’s age or appearance, or

(b)  a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4)  In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

[…]

3 Inability to make decisions

(1)  For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)  to understand the information relevant to the decision,

(b)  to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision.

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