Belief. Integral to possession of capacity.

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Manchester University NHSFT & Mr Y [2023] EWCOP 51

A forty-two-year-old man, Mr Y, had been found unresponsive. On admission to the Emergency Department his multiple injuries, including a fracture dislocation of his left humeral head, were noted. He had previously been admitted under the Mental Health Act 1983 with paranoid schizophrenia; then for many years had been successfully treated in the community, where he ‘greatly valued’ his independence. A feature of his schizophrenia, when relapsing, was his inability to believe clinical facts that were presented to him. He was unable to accept that an operation was required, because his delusion caused him to believe that no treatment was needed for the fracture dislocation of his shoulder. He also denied the requirement for his anti-psychotic medication, and the existence of his schizophrenia.

He was able to retain the information disclosed to him, but he could not use or weigh the risks and benefits of surgical reduction and stabilisation, because he did not believe he had been injured. Mr Y was nonetheless consistent, since as he did not accept the existence of the shoulder pathology, he saw no reason, in the absence of surgery, why he would lose function and movement in his left arm.

There was unanimity amongst the clinicians providing evidence to the court that Y’s delusional illness was responsible for his disbelief, and in turn, his inability to understand, weigh and use information that had been disclosed to him. The court was told that if no action was taken, Y’s shoulder would remain dislocated, resulting in detriment to his daily activities, not least due to pain. The surgery, if permitted, would need to be done promptly; Y’s operation could not await the resolution of his mental illness.

There were further practical considerations. If Y was to be operated upon, then physical and chemical restraint were foreseeable, both before and after general anaesthesia. Mr Y was 104 kg, with a body mass index of thirty.

Neither the Mental Capacity Act 2005 nor it’s Code of Practice explore the role of belief in assessing a patient’s capacity. Early common law judgements acknowledged this element in Re C, concerning a gentleman who whilst refusing amputation of his ischaemic leg, did believe the surgical opinion that he risked death if amputation was not performed. The statute and guidance relating to ‘function’ falls squarely on understanding, retaining, using and weighing information, and communication. But it is not unusual to encounter a patient whose delusions interfere with or negate their ability to weigh and use information; because the delusion causes them to disbelieve key elements of the clinical situation that is unfolding. The phenotype of a psychotic woman who faces an urgent caesarean section, but in addition has a delusory belief that doctors are trying to cut open her belly and steal her child provides an unfortunate, but realistic, example of this dilemma.

It may seem self-evident that treatment is required in these situations. But if the need for restraint is foreseeable, then we must ask ourselves whether the necessary restraint of an incapacitated patient might involve a serious interference with their freedom, to the extent that this equates to a deprivation of liberty. In that situation, the authority of a court to make that deprivation lawful is required, and provided the reason why this court application was made.

The judge found that Y lacked capacity to decide to accept or refuse treatment, due to his inability to believe, and thus use, the clinical information. The court heard that Y’s family and clinicians all believed that treatment was in his interests, and accordingly made an order: ‘Giving effect to Mr Y’s value of independence more effectively respects his dignity and promotes his autonomy than seeking to follow his currently expressed wishes and feelings’. On occasions such a this one, a judgement provides clinicians with the reassurance that intervention contrary to the wishes and beliefs of an incapacitated patient is lawful.

Mr Robert Wheeler
Department of clinical law