In Nottingham University Hospitals NHS Trust & Anor v RL & Ors  EWCOP 22 (a decision handed down in February 2023, but only published in June 2023), Sir Jonathan Cohen grappled with a dilemma that occurs relatively often in practice, but has been curiously under-considered by the courts: namely what ‘communication’ means for purposes of s.3(1)(d) MCA 2005. Along the way, he had also to consider how to proceed where everyone involved appeared to face insuperable challenges in engaging him.
The case concerned a man, RL, in his 30s, serving a sentence of life imprisonment for murder. His mental health having given rise to concern, he went back and forth between prison and hospital until February 2023, at which point he was electively mute, refusing food (whether ‘conventionally’ or by way of nasogastric feeding), and anti-psychotic medication. He was severely malnourished, and in the view of one of his treating doctors, “if we do not give sustained feed to RL now, we will precipitate a life-threatening scenario which could occur at any time.” It was the view of the treating team that it would be deeply undesirable to delay and that the risk grew exponentially the longer he was not fed or did not receive the appropriate medication.
The treating Trust brought an urgent application for authorisation of a nasogastric feeding tube for the treatment for malnutrition and also for his mental health condition and, in addition, as became apparent during the hearing, the treatment of his thyroid condition. The Official Solicitor, having considered the matter carefully, acting on behalf of the man, accepted the urgency of the situation and did not seek an adjournment, as is often the case, in order to obtain further information or third-party expert opinion.
The first question was as to RL’s capacity to make the relevant decisions. The case was advanced on the basis that, whilst RL could understand and retain the relevant information, he could not weigh it or communicate his decision. The evidence before the court included that of his treating consultant psychiatrist, who considered that he was “suffering from depression, and described him as virtually stuporous and mute. When she last saw him, he did not even flicker his eyes when she put papers in front of him and was not willing to communicate his wishes in any way at all. She described him as presenting as ‘quite shutdown.’” (paragraph 10). RL was described by his mother as being a completely changed person from the son that she know that he had very much deteriorated over the course of recent times. The evidence was that was not engaging with the family either, contrary to the way that he used to. When the Official Solicitor’s representative went to see him, Sir Jonathan Cohen explained that “he literally was not able to do so because RL would not come out from under the bedclothes; he remained completely invisible and would not engage in any way whatsoever” (paragraph 11).
Sir Jonathan Cohen concluded (at paragraph 12).
The evidence which I accept is that, on the balance of probabilities, he is indeed unable to weigh up the information as part of the process of making a decision or to communicate his decision in the words of the statute “whether by talking, using sign language or any other means.” He simply has made it impossible for anyone to know what his wishes are because he will not express them himself. He does not give any indication of understanding the link between receiving food and treatment and life and death.
Before moving to best interests, Sir Jonathan Cohen noted that, the morning of the hearing, the treating team had inserted a nasogastric tube. As he noted, “I think it is fairer to describe what happened this morning as an absence of any resistance by RL rather than a sudden piece of insight into his condition. He did not in any way try to interrupt the process; he was awake and conscious, but he said and did nothing.”
Sir Jonathan Cohen therefore made a declaration as to RL’s lack of capacity to make the relevant decisions under s.15 MCA 2005, noting that it was more appropriate for him to use this rather than the ‘interim’ provisions of s.48, as he had the evidence before him to enable him to make the declaration and that, if RL’s capacity returned, he would fall outside the statutory framework of the MCA.
As to best interests, Sir Jonathan Cohen identified that it was very difficult to assess RL’s views. He had been recorded as having said in late January whilst in A&E that he was trying to kill himself, but Sir Jonathan Cohen did not find that this constituted a “clear and settled wish to end life.” He would not communicate with the Official Solicitor’s representative, but Sir Jonathan Cohen noted that his mother had been very clear that her son’s current presentation was “out of character. She believes – and she knows him better than anyone else in this case – that he would want treatment if he was well” (paragraph 18).
Sir Jonathan Cohen therefore found that there was a very strong balance in favour of the administration of medication, including by way of restraint. However, he indicated that the matter should come back within a week because “within five to seven days there should be at least some indication as to whether or not the feeding issue is beginning to be resolved, even though the time for knowing whether the medication for his psychosis is assisting will be much longer. Since the court order includes the power to use restraint in order to address the issues of nutrition and hydration, it is appropriate that the matter should come back sooner rather than later” (paragraph 19) (at the time of writing this, no further judgment is available in relation to RL’s case).
We address in our guidance note on assessing and recording capacity the need to distinguish between a situation where a person is unwilling to take part in a capacity assessment, and the one where they are unable to take part. It is interesting to contrast this case with Re QJ  EWCOP 3 where Hayden J considered that – on the facts of that case – there was a “good deal of evidence” that the person’s reluctance to answer questions meant that they were unable to do so. Here, by contrast, it appeared to be clear to those involved that, to the extent that RL was being selectively mute, it was not a matter over which he could be said to have any conscious control.
As regards the consequences, this case fits squarely within the research that we referred to in our guidance note which suggests that, although the ‘communication’ limb of s.3 was intended to cover only a very narrow category of cases (such as locked in syndrome), it has been broadened to cover the situation where the person is unable to express a stable – or, here – any preference. As we put it in at paragraph 45 of our guidance note, “in such a situation, the assessor does not have access to the person’s real choice.”
In this regard, it is perhaps of note that Sir Jonathan Cohen appears at paragraph 12 to have proceeded on the basis that not only could RL not use and weigh the relevant information, he appeared also not to be able to understand that information either. Indeed, logically, if the end result is that everyone is having to proceed on the basis that the decision-making is taking place within an entirely impenetrable black box, it is difficult to see how any conclusions could be drawn (either way) as to the person’s ability to retain the information either.