In Avon and Wiltshire Mental Health Partnership v WA & Anor  EWCOP 37, Hayden J had to consider the capacity of a young Palestinian man to make decisions about his nutrition and hydration and, if he lacked capacity, what would be in his best interests. The factual matrix of the case is exceptionally complex, sensitive, and tragic which I do not set out here. The decision as to his capacity was, as was clear both from the evidence and the judgment, as borderline as it is possible to get. Ultimately, however, Hayden J concluded that the young man, WA, lacked capacity to make decisions about his nutrition and hydration, but that it was not in his best interests for forced naso-gastric feeding to be carried out without his agreement. To do so would be he considered:
“102. […] fraught with unmanageable and significant risk. Ultimately, it cannot be reconciled, in my judgement, with the protection of WA’s autonomy. I consider that every effort should be made, with the parents at the centre of the process, to persuade, cajole and encourage WA to accept nutrition and hydration. Attempts to deploy these techniques should be permitted with far greater persistence than would be considered appropriate in the case of a capacitous adult. I have no doubt that the attempts of persuasion will be delivered in the kindly and sensitive way that is most likely to persuade WA. I make no apologies for repeating that I consider WA has a great deal to offer the world as well as much to receive from it. No effort should be spared in encouraging him to choose life. This said, I have come to the clear view that when WA says no to CANH his refusal should be respected.”
On the face of it, it might be thought difficult to square this conclusion with the prior conclusion that WA lacked capacity to make decisions as to his nutrition and hydration. Put another way, why should his refusal be respected if it is incapacitous? The answer can perhaps best be understood by locating it in the specific context within which the treating team found themselves in which, as Hayden J indicated, the consequence of the judgment was two-fold:
1. The team were to be ‘armed’ with the confidence to seek to persuade WA in a way that they would feel uncomfortable doing with a person whose decision-making was unimpaired;
2. The treating team could, at the same time, be confident that if, despite this persuasion, WA did not actively assent (‘consent’ here would appear to be a slightly difficult word to use) to receiving nutrition and hydration, they would be acting lawfully if they did not then seek to impose such treatment against his will.
The judgment also contains the following points of wider importance.
WA who, unusually, but not uniquely, was found to have litigation capacity even though his subject matter capacity was in doubt, took part in the proceedings remotely. Hayden J observed that:
60. It is an interesting feature of remote hearings that they have served, in a number of cases, actively to promote the participation of P in the court process. I have visited WA (remotely) in his hospital bed, with his parents in attendance, on two occasions. Firstly, at the directions hearing and again when he gave his evidence. It was possible to set up an arrangement where I could see him but the Advocates and everybody else present in the court could only hear him. He has listened to every word of evidence with keen attention and self-evidently been able to provide full instructions to his legal team, in whom he plainly and rightly has great confidence. There are wider lessons to be learnt from this for the future.
Hayden J was astute to identify that, in the particular circumstances of WA’s case, “passive submission” had clearly to be distinguished from consent:
95. In some circumstances a plan predicated on compliance without actual agreement may be entirely legitimate. I think, for example, of transfusion cases where Jehovah’s witnesses will often indicate that they will submit to an order of the Court in the face of their religious beliefs. Ms Sutton has collated the various phrases that have been used to try to capture the essence of the Treatment Plan which is intended to communicate with clarity what is expected of those charged with providing treatment. She identifies: “gentle persuasion”; “tacitly compliant”; “passive acceptance”; “tacit cooperation” and “acquiescence”. Set out in this way they illustrate the complexity of the challenge to the treating clinicians and nurses, particularly to having regard to WA’s background. Moreover, looked at collectively, the phrases reveal themselves to be that which they are i.e. euphemisms for force feeding. A plan which stated specifically that WA will be force fed unless he actively resists would, I suspect, cause most people to recoil from it. It does not become any less disagreeable when dressed in softer language.
Conversely, Hayden J identified that there might be circumstances in which non-verbal consent could be manifested:
97. I have observed before, most notably in M v N (by her litigation friend, the OS), Bury Clinical Commissioning Group  EWCOP 9 that feelings and even strong feelings can often be expressed non-verbally. In fact, I noted in that judgment that feelings can sometimes be communicated, in contra distinction to what is actually said. DT told me in her evidence that there can be times when she considers that WA demonstrates to her both that he understands a proposed treatment and that he does not actively resist it. I took this to mean that this was absent expressed agreement. The reassuring and kindly presence and encouragement of his parents, particularly DT has, I am sure, resulted in WA receiving treatment in which there has been real and nonverbally expressed consent. It is this that the plan has tried to capture.
Finally, and in terms of the presumption of capacity, Hayden J observed that:
Ms Scott, [on behalf of WA] submitted that in circumstances where the evidence was so finely balanced as to be on a “knife edge”, it could not easily be said properly to have rebutted the presumption of capacity enshrined within the framework of the MCA. Though that submission is superficially attractive, Ms Scott agreed, in the course of exchanges, that it did not absolve the court from its duty rigorously to analyse the evidence. The presumption of capacity serves to place the burden of proving incapacity squarely on the shoulders of the applicants. The burden of proof remains the balance of probabilities, nothing more northing less (see Re: B  UKHL 35). In some cases, the evidence will tip the balance significantly in one direction. In other cases, such as this, the balance will be more delicately poised, though still identifiably weighted to one side.