Keywords: DOLS, Best Interests
The case concerned the issue of whether it was in the best interests of CD, a 43 year old woman with paranoid schizophrenia, to have a total abdominal hysterectomy. All the medical professionals were in favour of the surgery and CD strongly expressed a view in favour of the operation. However her behaviour had been erratic and she had expressed delusional and confused statements about her medical condition and was judged to lack capacity to consent to the treatment.
Whilst upholding the importance of the wishes and feelings of P in making a best interests judgement, Mostyn J stressed that they must not undermine the capacity assessment itself. He noted “Where, as here, there is no doubt about incapacity then the wishes and feelings of the protected person cannot alter that fact even if they happen to align exactly with a rational, “capacitous”, decision. CD cannot make such a decision. It has to be made for her. In reaching that decision there must be an objective analysis of what is best for her; and in this regard what she wants is very important but by no means decisive.”
Two further issues therefore arose. Firstly, whether CD’s detention under the Mental Health Act rendered her ineligible to be deprived of her liberty under the MCA? The issue was the interpretation of para 3(2) of Schedule 1A to the MCA 2005 which states: “P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”. This issue has previously been addressed in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31.
In this case, as in his previous judgement in Re A, Mostyn J rejected an absolute literal reading (which would have resulted in CD being ineligible under the MCA and required use of the inherent jurisdiction) and concluded that para 3(2) must be read in the light of the intent of the MCA and the express terms of paras 4.50 and 4.51 of the Code of Practice. It was therefore held that CD could be deprived of her liberty under the MCA, since the MHA regime under which she was detained did not itself contain any requirements relevant to this treatment.
The second issue considered was whether the proposed care amounted to a deprivation of liberty under the Cheshire West definition given that CD had actively and fervently expressed the wish to undergo the procedure. It was held that, since CD clearly lacked the capacity to make that decision, it would be necessary to restrain her were she to suddenly change her mind about the operation and, therefore, that an ancillary authorisation of deprivation of liberty must be made.
Notwithstanding the straightforwardness of the decision on deprivation of liberty in this case, Mostyn J nevertheless took the opportunity to pursue his views on Cheshire West with the following comments:
“In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”.”
He goes on to give two potential scenarios which he considers unclear under the Cheshire West definition:
“What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test …”