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Jackson J. Turning to the point that Mr C wanted to move to another home the judge made the following observation:. In the present case Mr C undoubtedly wants to live somewhere else, but this is a reflection of his unhappiness with the care home. He would like to be able to live an unconfined life in the community, but this is not realistically possible due to the extent of his difficulties. I distinguish his situation from those where a person has been removed from a home that is still realistically available.

The Preponderant Factor: Living Dangerously in Utopia

The Official Solicitor only requested that the local authority consider the placement recommended by the independent social worker instead of the current residential home where Mr C was unhappy. Mr C might aspire to live independently, and he had lived independently in the past, but his wishes and feelings as stated, and as they pertained to the decision to be taken in this case, seem to be limited to moving on from this particular care home.

The judgment may have been coloured by the fact that the judge had already found that he did not have the power to order that the guardianship order which applied to Mr C under the Mental Health Act be lifted. This empowered whoever was acting as guardian in this case the local authority to require Mr C reside at a place it directed. For as long as the Mental Health Act Guardianship was in effect any order regarding deprivation of liberty made by the Court of Protection would be redundant.

The only way to get the guardianship order lifted would be to apply to the Mental Health Tribunal which Mr C had already done unsuccessfully. Thus regardless of how the judge interpreted Mr C's evidence, or what weight he thought it proper to attach to it in deciding what was in Mr C's best interests it could have no practical effect on the outcome of the case.

In the cases of Re JH and MH and Re C , P presents evidence which is easy to interpret even if it is not easy for the Court to translate into a ruling or for service providers to then act upon. The dilemma of how to resolve issues which seem incapable of resolution is far more acute when P provides evidence regarding her wishes and feelings which seems internally contradictory or wholly at odds with anything which could be ordered by the Court. The case concerned E, a year-old woman who had suffered anorexia nervosa since her early teens.

For the two years before the case came before the Court of Protection her BMI had been dangerously low she had experienced repeated hospitalisations. In March E was detained in hospital under S.


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Naso-gastric feeding was started although E refused all treatment. At a meeting between E, her family and care-team it was agreed that all potential treatment options had been exhausted and a palliative care pathway was introduced. Naso-gastric feeding was stopped and E was transferred to a community hospital. She was also discharged from S. Some six weeks later an urgent application was made by E's local authority to the Court of Protection regarding this decision to withdraw life-sustaining treatment from an adult who lacked capacity. Its concern was that E's status as an individual protected by the Mental Capacity Act had been overlooked.

The judge, Jackson J. That being so he then had to make a decision regarding what treatment would be in her best interests. The options he identified were to continue with the palliative care pathway already agreed upon in which case E's death would be inevitable, or to transfer her to an intensive care unit within a specialist hospital and reinstate refeeding, forcibly i.

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The prognosis was uncertain. E's physical frailty was so great that her chances of surviving or not surviving treatment were described as equally balanced. After evaluating the evidence of the medical experts and E's parents, and considering the conflicting values of E's personal autonomy and the protection of her life the judge ordered that she be transferred to a specialist hospital where she could be detained under the MHA again and compulsory treatment could resume. A representative of the Official Solicitor was able to see E in hospital to obtain a statement regarding her current wishes and feelings.

This statement is worth quoting in full:. She [E] recognises that everything that could have been done to help has been tried she has endured a lot of pain with very little benefit.

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All the things she had wanted to do have proved impossible because of her illness. She can't achieve any of her goals and she feels crushed. She feels she is in a situation where she is able to give nothing to the world and the world is able to give nothing to her. She is conscious that she represented a huge burden to her family, who have always been extremely supportive and caring.

She feels that her life is pointless. She has tried to explore every avenue to get over her demons but has failed. She wants to live for the remainder of her life as she chooses, and if necessary to be allowed die with dignity. She understands that she will die without intervention. She does not want to be killed, she just wants to be allowed to act as she wants. It is possible that she might change her mind, but not because somebody forces [her] to do so. She has core beliefs and it will be those beliefs that will determine if she wants to stay alive.

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She asks the court to respect her wishes. Re E at para. The judge states without qualification that E wishes for a treatment plan that would lead inevitably to her death Re E at para. He made no efforts to engage with the subtleties of E's views, and although one medical expert suggested that E's views could be characterised as ambivalent para. The judgment attracted considerable media attention when it was published, perhaps regrettably since E had done nothing to encourage this. Some media commentators viewed it as an example of the Court overstepping its authority and failing to heed the wishes of E or her parents Hewson, ; Observer , But closer scrutiny of E's evidence suggests her wishes primarily concerned her right to physical integrity rather than her right to die.

E's evidence indicates that she had a very nuanced and subtle awareness of her situation, albeit one which could not lead to a simple resolution. But E makes much more equivocal statements regarding her wishes as to the future.


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She did not say that she would like to die. She clearly wished to retain control over her body. The difficulty with the judgment was that as presented there were only two viable treatment options: one representing certain death and the other a very small hope of life. But E's evidence complicated matters.

E felt that her current situation was untenable, that exerting control over and forcing her to live was also unacceptable, but that was not the same as expressing a wish that she would positively desire to die. E referred in her statement to a third possibility; that left alone she might decide to change her mind. The judge's appraisal might well have been right. Certainly the medical experts consulted on E's case agreed with him and the wider evidence on the prognosis for eating disorders as severe as E's would tend to support his views.

This was also expert evidence; it required precise analysis and evaluation too. In this instance closer analysis of E's evidence would have allowed for a reordering of the judgment that might have silenced some of the criticism raised after the case was heard. The judgment as it stands decides that although E desires to die, since she lacks capacity and it could not be in her best interests to die, even though intervention will be arduous, distressing and possibly futile, it is still better than the alternative. But it is arguable that E did not desire to die, she desired to live, albeit without anyone interfering with her body.

Those terms were not such that they gave any viable prospect of her actually surviving, but since she showed some underlying interest in living longer the Court could argue that it was justified in ordering that alternative and more invasive treatment be given instead. These cases arise fairly frequently. Mrs and Mr A had learning disabilities and had been married for 18 months when their local authority applied to the Court of Protection for an order making declarations that she lacked capacity to make decisions relating to contraception and that it would be in her best interests to use contraception.

Mrs A had two children prior to meeting Mr A. During each pregnancy she had been assessed as unable to raise a child independently and both children had been removed from her care and placed for adoption at birth. Mrs A's evidence was complex. Some of it concerned her wishes regarding her relationship with her husband and her plans to have children, some of it concerned her feelings regarding the use of long-term contraception, some of it concerned her feelings regarding the way her husband treated her.

Unlike the evidence in the cases discussed above where the statements made by P were either delivered in Court or made to a representative of the Official Solicitor, the judge considered evidence regarding Mrs A's wishes and feelings from a number of other witnesses too, most of them employees of the applicant local authority. In the event the judge, Bodey J, found that Mrs A did not have capacity to make decisions regarding the use of contraception. He also evaluated whether to make an order regarding what would be in Mrs A's best interests.

Here he found that any attempt to compel Mrs A to use contraception would require the use of force and would be practically impossible. He was not prepared to make an order to this effect. In this case it is not the judge's assessment of what is in Mrs A's best interests that is problematic. Instead, it is how he reaches his assessment that Mrs A lacks capacity based upon her wishes and feelings which seems unwieldy.

He considered arguments from representatives of the local authority that capacity to use contraception required the capacity to understand the implications of having and raising a child but discounted this line of argument, favouring a more minimal test. To make a decision regarding contraception it was sufficient for Mrs A to understand:. Re A and A at para. Mrs A demonstrated this level of knowledge. Mr A exerted undue influence over her behaviour.

This was demonstrated by a consistent pattern of bullying and violence towards her.