This article originally appeared in Issue 5 (May 2020).
QJ v A Local Authority  EWCOP 3
The court decided that a further assessment of capacity was needed when an elderly man who was detained in a care home under Schedule A1 of the Mental Capacity Act 2005 expressed conflicting desires regarding his food intake.
“QJ” was an 87-year-old male with vascular dementia and substantial care needs. He had been the subject of a standard authorisation under Schedule A1 of the Mental Capacity Act 2005 (“MHA 2005”) from mid-November 2019 which had the effect of depriving him of his liberty and requiring him to live and be cared for in a care home. On 10 January 2020 an application was made under section 21A of the MHA 2005 to consider his best interests, after he had seemed to commence a hunger strike in December 2019. This arose in the context of a clearly expressed desire not to be living in a care home, and in circumstances where he was being investigated by police in relation to allegations of historic child sex abuse.
The key issue for the court was whether QJ had capacity to make decisions about his nutrition and hydration (as opposed to decisions about his residence and daily care). As is not unusual in such cases, events intervened, and shortly before the application was to be heard QJ suffered a bleed. The hearing was adjourned for 45 minutes so that he could be seen by his GP, who reported that the bleed was not huge, although he was likely to die within weeks if he continued to refuse food. Although QJ had been assessed as lacking capacity to make decisions about his residence and daily care, his GP felt that he did have sufficient capacity to make decisions about his food and medical treatment, and that he ought to be able to die as he appeared to wish. However, subsequent to the GP assessment, when speaking to his Litigation Friend in the presence of his legal representatives, QJ appeared to say that he would like medical treatment to keep him alive, and did not want to die. When asked if he would like to start eating, he said that if was presented with something he liked he would eat it. When asked if he wanted to be put on a drip to receive nourishment, he nodded.
In light of the position that QJ had been assessed as lacking capacity in relation to residence and daily care, and having regard to the conflicting signals he was sending in relation to food and medical treatment, the court endorsed a proposal that he should be assessed by a psychiatrist to consider questions of capacity in relation to food and medical treatment more generally. The court also indicated that even if the report concluded that he did have capacity, the matter should come back to court for a final determination, in light of the extant application.