Is refusal of food indicative of lack of capacity?

Ella Pudney discusses a recent Court of Protection case on whether the refusal of food in prison was indicative of a lack of capacity.

The Court of Protection has recently ruled on a case concerning malnutrition resulting from the refusal of food while in prison. In Nottingham University Hospital NHS Trust & Anor v RL & Ors [2023] EWCOP 22, the Court of Protection (the court which oversees and determines questions in relation to those who, due to incapacity, are unable to do so themselves)  was required to decide whether the protected party in that case, ‘RL’ had capacity; determining whether or not RL had the ability to make a decision for themselves regarding the refusal of food and treatment for malnutrition, psychosis and hyperthyroidism.

It was ultimately decided that RL did not have the capacity to make these decisions based on his inability/unwillingness to communicate and more importantly the lack of any indication as to understanding the link between receiving food and treatment, and life and death.

Background

RL was a man in his thirties serving a life sentence in prison for murder. Having recently moved prisons in 2020, concerns were raised the following year regarding his mental health. RL did not appear to respond to unseen stimuli and refused food, he failed to engage with the mental health services available in prison and was discharged from their service. The following two years consisted of a continuing inability to verbally communicate and the refusal of food.

By 2021 RL stopped communicating verbally and resorted to only using non-verbal gestures.

By March 2022 RL began verbally communicating and after assessment was determined to have become selectively mute.

By September 2022 RL was refusing food resulting in weight loss and was not engaging with mental health services.

There where various out-patient appointments between this time.

By February 2023, after a previous short admittance to hospital for assessment and treatment, RL returned to the hospital with very low body weight. All evidence suggested he was severely malnourished, and was refusing nasogastric feeding and antipsychotic medication, which was seen to be essential in restoring his mental health. On the date of the hearing, 17 February 2023, RL had been admitted for 11 days.

The position

On the morning of proceedings, RL had allowed the treating team to insert a nasogastric tube. He had been awake and conscious, failing to react to the treating team and did not attempt to interrupt the process.

The judge, Sir Jonathon Cohen, commented that the fact the precise nature of the psychotic illness could not be diagnosed at the time did not invalidate the diagnosis. Dr ‘D’, a consultant psychiatrist on his treating team, described RL as “quite shutdown” with her view being that he did not understand information that was presented to him. One treating doctor took the view that, in terms of RL’s malnutrition, he would not die within the hour if he did not receive adequate treatment, but that the longer treatment was denied the more dangerous the situation would become.

Cohen J also commented that RL had simply made it impossible for anyone to know his wishes as he would not express himself.

The Official Solicitor, acting on behalf of RL, accepting the urgency of the matter did not seek an adjournment, which Cohen J commented was often seen in this kind of case.

So, did RL have capacity to make the decision needed relating to him?

The Judgment

Despite a declaration of suicidal intention on 26 January during a visit to A&E, this being the only known declaration of suicidal intentions, the acceptance of a nasogastric tube and RL’s mother’s strong representation that he would want treatment if he was well, the declaration was seen to be a continuing fluctuation in his mental health.

Considering this fluctuation in RL’s mental health Cohen J found a lack of capacity under section 15 of the Mental Capacity Act 2005 rather than section 48. Section 48 allows for interim orders and directions in advance of a final determination where there is reason to believe that said person lacks capacity while relevant evidence is gathered whereas section 15 is a declaration as to whether said person has or lacks capacity to make a decision. The latter in this case, due to urgency and the evidence already presented to Cohen J, was an appropriate choice based on the evidence available for a declaration under Section 15 and the ability for RL to fall out of the statutory framework if capacity were to return, allowing RL to make their own decisions as to the need for treatment regarding their malnutrition, hyperthyroidism and mental health.

With a strong presumption in the preservation of life at the forefront of the judge’s mind, there was a very strong balance in favour of the administration of treatment with authorisation to use restraint if necessary to replace the nasogastric tube, if it became dislodged, in order to address hydration and nutrition concerns.

The case was to be returned to the Court of Protection in five to seven days in order to assess any indication of improvement as to the malnutrition and the sensitive nature of restraint authorised in order for treatment to be given. It would be a longer period of time before a review of the antipsychotic medication due to the time it takes to assist.

The case shows the approach the Court of Protection will take when considering an urgent matter of life or death, what a protected party’s wishes may have previously been from the point of a close family member with a fine balance to be drawn in this case, when considering a potential suicide ideation on one hand, with an apparent want for treatment on the other.

Ella Pudney is a Paralegal in the Contested Wills, Trusts and Estates team at Hugh James.