Re BV (Medical Treatment – Renal Cancer: Nephrectomy) [2025] EWCOP 41 (T3) is a relatively ‘routine’ medical treatment case (without, of course, diminishing its huge significance for the man in question). It is a clear and thoughtful example of the relevant statutory bodies and the court working through carefully to ensure that a patient detained under the MHA 1983 received appropriate treatment for an unrelated physical disorder. It is also of note for the clarity of the capacity assessment carried out by BV’s treating psychiatrist.
Dr C has formed the view that BV lacks capacity to consent to the proposed treatment for his cancer. He confirmed that BV has a diagnosis of a mild learning spectrum disorder and in his oral evidence he was also able to inform the court that BV’s diagnosis of Autistic Spectrum Disorder (“ASD”) had recently been formally confirmed. His assessment also makes reference to previous diagnoses of schizoaffective disorder, schizophrenia and anxiety and depression. Having regard to the elements of section 3 of the Act Dr C’s evidence was as follows:
(1) BV was unable to understand and weigh up information relevant to the decision in question:
(a) On a basic level BV is aware that he has cancer and can recall the treatment options and the basic consequences.
(b) However, he had difficulty in appreciating the small percentage risk of serious peri/post operative complications and struggled to accept reassurance regarding support.
(c) He was scared and anxious about having the operation, saying he would not be able to mentally or physically recover from it, despite reassurance that this was unlikely. Dr C considered that BV’s fear and anxiety was out of proportion to the relatively low risk of complications. He considered that whilst BV could understand the words used and retain the information, he was unable to apply the information to himself.
(d) BV referred to a previous cancer diagnosis, and was dismissive when told that this was not supported by his medical records. He remained of the view that he has lived with cancer from the age of 28 and due to prayer and healing, it has not affected his life.
(e) Dr C considered that the fact that BV refused to accept this medical fact showed rigidity of thought as part of his autistic presentation. This rigidity of thought similarly affects BV’s current view that his likely kidney cancer will once again have minimal impact if he relies on “God’s will and religious healing”.
(f) Dr C also considered that this demonstrated an inability on BV’s behalf to cognitively understand his condition (as it is not currently experienced by him in terms of a contemporaneous bodily experience but is rather a hypothetical future event). He considers that BV’s ASD and consequent difficulty with abstract thought restricts him from fully understanding this and renders him unable to make the decision.
(2) BV is able to retain information. He was able to confirm to Dr C that he had been diagnosed with a tumour and that with an operation he would have a 90% chance of being alive after 10 years and without it he would live 2 years.
(3) BV is unable to weigh up information. In individuals with a learning disability, confabulation can often be utilised to mask deficits in memory, executive functioning, and understanding and in BV’s case, this has resulted in his somewhat confusing narrative and impacted on his ability to explain his thoughts and decisions regarding the surgery.
(a) Dr C considered that BV’s deficits in executive functioning leads to a limitation of his ability to process the information and apply it to his current situation and to appropriately think and plan for the future. This was evidenced by his ongoing belief around a past cancer diagnosis, and the fact that this had had no significant impact on his life due to this being “God’s will”.
(b) BV’s deficits in abstract thinking and theory of mind arising from his ASD lead to an inability to weigh up relevant factors in the balance. Therefore, whilst he understands some of the surgical facts relevant to the decision, he is not processing these to weigh up his situation as only his fixed and overvalued thoughts and feelings are relevant. He has been unable to take on medical opinions and his family’s thoughts, concerns and distress caused by his potential refusal of treatment.
(4) Dr C confirmed that BV was able to communicate his wishes and feelings.
Two points stand out. The first is the way in which Dr C worked from the starting point of the clinical phenomenon of executive functioning to the language of the MCA (as to which see further here). The second is the way in which Dr C approached the communication limb. So often, we see that part of the report completed as “P is able to communicate a decision,” at a point when the assessor has found that they cannot understand, retain, use or weigh relevant information. At that point, and (as discussed here) there is no ‘decision’ for the person to communicate, so saying that “P can communicate a decision” is logically meaningless. Dr C framed it correctly – this was a case where BV was able to communicate his wishes and feelings, wishes and feelings which, in turn, could be considered in the best interests decision-making process.
