The Legal Test Of Capacity And Best Interest Decisions In The Court Of Protection

• Published date: 01 July 2020
• Subject Matter: Law Department Performance, Management
• Law Firm: Anthony Gold
• Author: Ms Samantha Clayton

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...