Alex RKIn Re AB [2016] EWCOP 66 which was decided in December 2016, but which only appeared on Bailii in March 2018 (for reasons which will perhaps be self-evident) Mostyn J was asked to approve a treatment regime for a woman with HIV which involved the administration of medication to her on the basis of active deception.
The woman, AB, contracted HIV in 2000. At that point, her capacity to make decisions regarding medical treatment was unimpaired, and she voluntarily sought treatment and engaged fully and consensually and willingly with such treatment until 2008. In 2008, there was a major deterioration in her mental condition, and after that her engagement with HIV treatment was interrupted. Her medical condition worsened, AB suffering from a serious psycho-affective disorder. The evidence before the court was that, although people with this disorder do, from time to time, recover, the extent of relapses in AB’s case, and their scale, made it unlikely the foreseeable future she would recover from her psychiatric condition. The position agreed before the court – including by the Official Solicitor on AB’s behalf[1].– was that she undoubtedly lacked capacity to decide whether to engage in anti-retroviral treatment.
Critically, AB was at the time of the judgment was, in the words of the judge
“16. in the grips of very powerful delusions, which prevent her from addressing many aspects of normal life rationally. For example, she does not believe that, now, she is HIV positive. She believes that she is a participant in a film about HIV, in which she will be participating with her husband. She does not, in fact, have a husband, but she believes that she is married to a celebrity sportsman. She believes that the person who is her husband will come back for her and take her away to live in connubial bliss. She believes that when blood samples are taken from her by the hospital staff it is done by them for the purposes of drinking her blood. Above all, she is positive that she is not HIV infected, and 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.
17. f the choice were hers, and hers alone, she would not take the anti-retroviral treatment and, on the evidence, it is clear that, were that course to be followed, having regard to previous monitoring when there have been interruptions, 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.
Mostyn J therefore had to make the decision on AB’s behalf as to what was in her best interests, and embarked for this purpose upon a consideration of her past and present wishes and feelings, as well as the beliefs and values that would be likely to have influenced her decision had she had capacity:
19. As far as her past feelings are concerned, up to 2008, which is when we know that she did have capacity, her conduct in that period demonstrates that her wishes were to receive HIV treatment.
20. As far as her present wishes are concerned, there is no dispute: they are very strongly opposed to HIV treatment.
21. Parliament has decreed that I must go on to consider not only actual wishes and feelings but hypothetical wishes and feelings, because by virtue of Section 4(6)(b) I have to consider the beliefs and values that would be likely to influence her decision if she had capacity and I am also required by virtue of paragraph (c) to consider the other factors that she would be likely to consider if she were able to do so.
22. I am perfectly satisfied, having regard to her willing and consensual participation in treatment up to 2008, that if she had capacity (and I would interpolate parenthetically that of course if she had capacity we would not be having this case), she would unquestionably enthusiastically embrace anti-retroviral treatment, which I do not shrink from describing as a miracle treatment.
In the circumstances, Mostyn J had:
25. […] no hesitation in concluding that virtually no weight should be given to AB’s present wishes and feelings. Instead, I should place considerable weight on her past wishes, as demonstrated by the evidence, and on her hypothetical wishes, which I have no doubt would be in favour of the treatment.
26. It is, it might seem, a strong step for the Court to take: to authorise a course of medication that involves deception, and I hesitate from saying that perhaps it is not so surprising in this post-truth world in which we now seem to live, but that would be perhaps a cynical aside. However, on the facts of this case, there can be no doubt that there has to be authorised a course of action that ensures that AB, in her best interests, receives the treatment that will likely save her. It is for this reason that I am happy to approve the order that has been put before me.
27. The order will provide, however, that if the truth emerges to AB and she moves to a position of active resistance then the matter will have to be reviewed, and the Court will have to consider, in that situation, whether to move to forced administration of these drugs, which would be a very difficult decision to make, because it would not be a one-off administration of treatment, but would be a quotidian administration of treatment, which is a very different state of affairs to that which is normally encountered in this Court.
Comment
Even more than in most cases before the Court of Protection, one is left wanting to know what happened next for AB. Moreover, and almost more than in any other case decided to date, it also brings home the potential within the MCA for stark clashes between past and present wishes and feelings.
It could also – I suggest – be used as a case-study for testing thinking about the CRPD. Is this, for instance, a case where it would be legitimate to say that AB’s ‘will’ can be taken from her actions before the period of mental ill-health, and can legitimately be said to be different to – and of a higher order than the ‘preferences’ being expressed now? Is it, therefore, an exemplar of the model suggested by George Szmukler[2]? And where does the requirement under Article 25(d) that healthcare be provided on the basis of “free and informed consent” (and/or the right under Article 17 to equal respect for physical and mental integrity) come in? It is all too easy by searching for absolutist principles here to reach a point which would seem entirely wrong – including, above all (I would very venture to suggest) to AB herself if and when her mental state recovered.
[1] As a footnote, it would have been fascinating to understand the basis upon which the conversation between the Official Solicitor’s staff member and AB took place – the “eloquent” attendance note clearly made an impression upon Mostyn J: “[I[f anyone has any doubts as to the scale of the mental challenges faced by AB they only need to read that note, which I am not going to read into this judgment.”
[2] See e.g. Szmukler G. The UN Convention on the Rights of Persons with Disabilities: “rights, will and preferences” in relation to mental health disabilities. Int J Law and Psychiatry 2017. https://doi.org/10.1016/j.ijlp.2017.06.003 and his book Men in White Coats: Treatment Under Coercion (OUP, 2018.
