Most people would not normally expect a court to involve itself in deception. But then, most people have little knowledge of the huge range of issues that the Court of Protection finds itself having to deal with, as it endeavours to carry out the task that its name implies: protecting those who are unable to protect themselves. For just two examples, see this post about a husband who was excluded from the life and care of his wife who was suffering from Alzheimer’s disease, and this post about a vulnerable young woman with autism who it was feared was at risk of sexual exploitation.
So in what circumstances would the court approve a deception? Well, I’m sure there are other examples, but in the case Re AB it was to protect a woman with HIV who lacked capacity to make decisions for herself. The case was actually decided by Mr Justice Mostyn in December 2016 but, for reasons we can but guess, his judgment was only published on Bailii last Friday.
The facts of Re AB were that the woman had contracted HIV by the year 2000. At that time she was of full capacity and she voluntarily sought treatment, with which she engaged fully and consensually. Unfortunately, however, there was a major deterioration in her mental condition in 2008, after which her engagement with HIV treatment was interrupted, and her medical condition worsened.
The woman suffered from a serious psychoaffective disorder, from which she was unlikely to recover in the foreseeable future. She suffered in particular from very powerful delusions, including that she was not in fact HIV positive, but instead was a participant in a film about HIV. At the time of the hearing she was therefore very strongly opposed to HIV treatment. As Mr Justice Mostyn said, her 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 treatment.
In the light of her condition, any treatment would have had to be administered secretly and clandestinely, otherwise she would actively resist. That would leave as the only option forced administration of HIV drugs, something which those treating her would obviously want to avoid, particularly as the drugs have to be administered every day.
The question then was, should the court approve a treatment regime that involved such an active deception, administering the drugs without the patient’s knowledge?
To answer this, Mr Justice Mostyn looked at the woman’s past feelings up to 2008, when she did have capacity. Clearly, her conduct in that period demonstrated that her wishes were to receive HIV treatment. In view of this, Mr Justice Mostyn was “perfectly satisfied” that if the woman still had capacity “she would unquestionably enthusiastically embrace” the treatment. He therefore concluded that whilst it might seem a strong step for the court to authorise a course of medication that involved deception, “on the facts of this case, there could be no doubt that there has to be authorised a course of action that ensures that [the woman], in her best interests, receives the treatment that will likely save her.”
Accordingly, he approved the treatment proposed, and the means of administration, although he made it clear that if the woman became aware of what was happening and actively resisted, then the matter would have to be reviewed by the court.
Mr Justice Mostyn began his judgment by remarking that the facts of the case, involving an active deception, were unusual, as he had not encountered such facts before, in his years sitting in the Court of Protection. However, upon reflection, he then said that he was not so sure that the situation is in fact likely to be that uncommon. This is probably true: there must be many cases in which incapacitated patients have to be duped into taking the medicine they need. Approving such deceptions is just another example of the work that this vital court does.
The full report of the judgment can be found here.
Photo by joeflintham via Flickr under a Creative Commons licence