PH v Betsi Cadwaladr University Health Board [2022] EWCOP 16 (31 March 2022)

PH is a 41-year-old man with a complex medical history, including hypoxic brain injury and a tracheostomy. He requires percutaneous endoscopic gastronomy (PEG) feeding. However, he can communicate unambiguously and there was no dispute that he had capacity to consent to or refuse PEG feeding. At the most recent hearing in this long-running case, PH had been refusing nutrition for 41 days. 

Having heard evidence from the relevant clinicians, all of whom agreed, the Court was satisfied that PH had capacity to decide upon his treatment and, accordingly, held that there was no jurisdictional basis for a best interests’ decision to be made.

Both the CCG and the Official Solicitor acting for PH were inviting the Court to make declarations under its inherent jurisdiction to enable supplements to be provided to PH, but these were refused. The Court noted the limited scope of the inherent jurisdiction, for example where a vulnerable adult has decision making capacity, but their will is being overborne (see Re SA [2005] EWHC 2942 (Fam); Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam)), which nobody had suggested applied to PH.  

This case serves as a good reminder of the principles of the Mental Capacity Act 2005, particularly that a person is not to be treated as unable to make a decision merely because he makes an unwise decision (section 1(4) of the Act).