“The efficacy of the MCA is dependent upon getting the balance right between empowering and protecting the incapacitous”
In the matter of Domenica Lawson  EWCOP 22
Autonomy and protection are the two principles at the heart of the MCA. One of the many ways they push up against each other is in determining the role that families should take in making decisions about the welfare of their adult children. For any particular decision we can well see that objective decision making by engaged professionals may lead to a better outcome where there is proper respect afforded to P’s wishes and feelings as part of a full best interests consultation. But professionals can fall short of that exercise and too easily discount P’s wishes or the views of those who know him/her best. Can professionals have the same long term role as family – and even if they could, does the state any longer have the staff or the budgets to be engaged in someone’s life over the longer term? If not, is a personal welfare deputy the answer?
Section 16 (4) MCA tells us that a decision of the court should be preferred to a decision of a deputy and that the powers of a deputy should be as limited in scope “as is reasonably practicable in the circumstances”.
B v A Local Authority  EWCA Civ 913
What should assessors and the courts do where someone appears to have capacity in some areas of decision-making but to lack capacity in related areas?
A well-known problem
This conundrum is well known and hard to resolve. It most often arises where an individual has capacity to consent to sexual relations but lacks capacity to make decisions about contact. Sexual capacity one of the lowest hurdles to jump because for people of full capacity that decision is often “visceral rather than cerebral, owing more to instinct and emotion than to analysis” (In re: M (an adult) (capacity: consent to sexual relations)  3 WLR 409 para 80). A decision about contact is considered to require more analysis and the bar is accordingly higher. What happens where someone has capacity to consent to sexual relations but not to make decisions about contact with their preferred partner?
The problem received intense press scrutiny last year in a well publicised case before Hayden J in which a young woman was found to have capacity to consent to have sex and to marry, but to lack capacity to make decisions about contact (Manchester City Council Legal Services v LC & Anor  EWCOP 30). In that case, Hayden J did not have to resolve the profound question ‘whether’, as he elegantly put it, “the MCA, by collateral declarations, is apt to limit the autonomy of individuals in spheres where they are capacitous”, but said that any such case should be heard by a High Court judge.
University Hospitals of Derby and Burton NHS Foundation Trust v J (by her litigation friend, the Official Solicitor)  EWCOP 16,  All ER (D) 106 (May)
What are the practical implications of this case?
‘Do we need to make an application to the court or can we just get on and treat? It’s obviously in P’s best interests and everyone agrees — even the Official Solicitor and the family.’ If there was a poll among the Court of Protection Bar of the question we are most frequently asked (and most frequently late on a Friday evening) that one would win the prize. ‘Do we need a declaration?’ In An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) and another  UKSC 46,  All ER (D) 167 (Jul), the issue was the withdrawal of clinically-assisted nutrition and hydration (CANH) — leading inevitably to P’s death. Re Y marked the apogee of judicial debate on the discrete issue of the withdrawal of CANH and the position is now reasonably clear following judgment and the British Medical Association/Royal College of Physicians guidance. Although the obligation on hospital trusts and clinical commissioning groups to bring an application in respect of other treatments where all parties are in agreement has evidently reduced, the threshold above which an application should be made has not been clearly defined in any case. University Hospitals of Derby and Burton NHS Foundation Trust v J is an example of a case which clearly had to be brought to court, despite the agreement of all concerned that the treatment was in P’s best interests — it is a useful reminder that there are many such cases where an application must still be made.
Mrs Rushton lived a long and happy life. In her youth she worked as a nurse, married a man who adored her, and together with her husband raised four sons. After her husband passed away, “the sweetness went out of her life”, and Mrs Rushton began to display the early signs of dementia.
On 24 July 2014, Mrs Rushton signed an Advance Decision Refusing Treatment (ADRT) stating that “on collapse, I do not wish to be resuscitated by any means. I am refusing all treatment. Even if my life is at risk as a result…this direction is to be applied”. Mrs Rushton left her ADRT in the safe-keeping of her general practitioner.
On 21 December 2015, Mrs Rushton fell and suffered a major head trauma which was “so significant that she was not expected to survive”. She defied the doctors’ expectations and lived, although did not regain consciousness. The Hospital was informed of the existence of an ADRT and so telephoned Mrs Rushton’s GP to learn the detail: as recorded in the hospital notes, the GP said that “the only ADRT in place is in regards to do not resuscitate”. Accordingly, the medical staff inserted a percutaneous endoscopic gastronomy (PEG) tube so that Mrs Rushton could receive nutrition whilst she was discharged home, albeit in the expectation that she would soon die.
However, being well-cared for by her youngest son, she lived on for almost three years in a persistent vegetative state before the question of withdrawing treatment came before the court. The question for the court was whether continuing to provide clinically assisted nutrition and hydration (‘CANH’) would be in Mrs Rushton’s best interests particularly in light of her earlier ADRT.
Dr Esegbona (on behalf of the estate of Christina Esegbona, deceased) v King’s College Hospital NHS Foundation Trust  EWHC 77 (QB)
- When Mrs Esegbona fell ill in October 2010, requiring a tracheostomy, there was no question she needed hospital care. However, when she was ready for discharge, the Trust’s staff repeatedly ignored her express wish to have the tracheostomy removed and go home to her family. For over three months, the Trust failed to comply with its duties under the Mental Capacity Act 2005, and instead took a ‘high-handed’ and “oppressive” approach. The Trust deliberately excluded her family from any decisions concerning her future care, moving Mrs Esegbona to a nursing home many miles away from her home and family.
- Had the Trust complied with its duties under the MCA, Mrs Esegbona’s wishes and feelings would have been considered: she would have had “a voice”… her frustration and distress would have been significantly reduced”. Instead, just nine days after being moved, Mrs Esegbona died, “frightened, distressed and alone (when she should not have been)…”
- In January 2019, HHJ Coe QC delivered judgment. The court found clinical negligence, and awarded significant damages and aggravated damages for Mrs Esegbona’s false imprisonment. Importantly, this case demonstrates that a person can recover substantial awards if they are falsely imprisoned, their wishes ignored, and kept, not just away from home, but from any environment that would be more suitable, in circumstances which cause them considerable distress [234 – 236]. It also serves to strengthen the approach to damages taken in the deprivation of liberty HRA case of Essex County Council v RF & Ors (more commonly known as the “Fluffy” case)  EWCOP 1.