Legal Update: Would I lie to you? Court of Protection approves the administration of medication by deception


Re AB [2016] EWCOP 66 The Court of Protection approves the administration by deception of an HIV treatment regime in the best interests of a woman who lacks capacity.

Background

Although this case was heard by the Court of Protection in 2016 the judgment was not published until this year.

The case involved a woman, AB, who had been diagnosed with HIV in 2000. At that time she had capacity and voluntarily sought treatment. Indeed she fully engaged with her HIV treatment regime up until 2008 when she suffered a major deterioration in her mental health. AB had a diagnosis of psycho-affective disorder. This condition gave rise to powerful delusions which prevented her from rationally addressing many aspects of normal life, including a belief that she was not HIV positive. She believed that when blood samples were taken from her at hospital this was done by staff for the purpose of drinking her blood.

The psychiatric evidence before the court indicated that it was unlikely in the foreseeable future that AB would recover from this relapse in her mental health and her psychiatric condition meant that she was ‘unquestionably incapacitated under the terms of the Mental Capacity Act 2005, in relation to the decision whether to engage in anti-retroviral treatment’.

The Judgment

Mr Justice Mostyn was at pains to explain in his judgment the extraordinary leaps forward there have been over the last 30 years in the treatment of HIV with anti-retroviral drugs which mean it is now ‘possible for an infected person, after a certain period of treatment, perhaps to be measured in months or years, to live a normal life in almost all respects.’

AB’s delusions meant that if she were to be given the choice she would choose not to take her anti-retroviral treatment as she did not believe that she was HIV positive. Mostyn J explained that were this to be allowed to occur ‘it is foreseeable that within a relatively short period of time her immune system would be seriously compromised and she would be exposed to the risk of death.’

The question for the court was whether it was in AB’s best interests to undergo a treatment regime which involved administering anti-retroviral medication to her by a process of ‘active deception’.  Mostyn J stated that ‘were she to learn that she was being secretly and clandestinely administered with anti-retroviral treatment the evidence is that she would be exceedingly aggrieved’.

The provisions of the Mental Capacity Act 2005 (MCA) required Mostyn J to consider AB’s past and present wishes and feelings when making a decision as to what was in her best interests. In terms of past wishes he noted that up until 2008, during which time she had capacity, she demonstrated her wishes by engaging in HIV treatment. However, AB’s present wishes were very clear – she strongly opposed HIV treatment.  Mostyn J acknowledged ‘it is wrong, on the authorities, for this Court to conclude that because someone is seriously incapacitated their wishes and feelings are irrelevant.’

MCA s.6(b) required Mostyn J to also consider the beliefs and values that would be likely to have influenced AB’s decision if she had capacity. Accordingly, he concluded ‘having regard to her willing and consensual participation in treatment up to 2008, that if she had capacity… she would unquestionably enthusiastically embrace anti-retroviral treatment.’

In balancing AB’s best interests Mostyn J had no hesitation in concluding that virtually no weight should attach to AB’s present wishes and feelings but instead considerable weight should be given to her past and her hypothetical wishes and feelings. As such, the balance of best interests favoured continuation of the treatment even though this would necessarily involve administering the treatment by deception. Mostyn J acknowledged that this was ‘a strong step for the court to take’ but felt that the decision was justified given that the treatment was ‘likely to save her’. However, he cautioned that if AB’s position moved to one of active resistance then the matter would need to be brought back before the court for consideration of whether forced administration of drugs would be in her best interests which he acknowledged would be very difficult decision for the court to make.

Comment

This case provides a good example of the balancing process required by s.4 MCA when weighing a person’s past, present and hypothetical wishes and feelings to determine their best interests. In this case, the fact that AB actively engaged with HIV treatment prior to the relapse in her mental health (which resulted in her loss of capacity) was highly influential in the court’s decision. Had she demonstrated active objection to the treatment at a time when she had capacity then it’s unlikely that the court would have reached the same decision.

The case also reiterates that the use of covert medication of a person who lacks capacity requires a best interests decision.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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