I think Mostyn J might have preferred my original choice of title “supressio veri, suggestio falsi” as he makes that reference within the body of the piece. But what sort of King Canute am I, to attempt to stand in the course of the Charles and Eddie tide when it comes crashing in?
This is a Court of Protection judgment, in which the Court was being asked not only to approve treatment to a woman AB, who lacked capacity to consent to it, but also to actively deceive her about the treatment. Not just to ‘supressio veri’ and conceal the truth from her, but ‘suggestio falsi’ to actively lie about it.
- I am asked to approve a treatment regime for AB, which involves the administration of medication to her on a basis of deception. Not merely passive deception, which, to use a legal phrase might be characterised as suppressio veri, but active deception, which lawyers might describe as suggestio falsi. It is debateable whether there is in fact much moral difference between the two types of deception, but what is being proposed here is a treatment regime, an administration of medication, on the basis of active deception of AB.
Re AB 2016 EWCOP 66
Mostyn J sets out that it is unusual for the Court of Protection to be asked to decide that it is in a patient’s best interests that they be deceived , and that he has not come across such a case before.
The facts are tragic, and explain why that was felt to be desirable.
- As I have stated, AB is HIV positive and she had contracted the disease by 2000, when she was diagnosed with it. She was of full capacity at that point, 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, and I heard evidence from Dr L, consultant psychiatrist, specialising in the field of rehabilitation psychiatry.
- She has described to me how AB suffers from a serious psychoaffective disorder. Her evidence demonstrated to me that, although people who suffer from this disorder do, from time to time, recover, the extent of relapses in this case, and their scale, means that in her opinion it is unlikely that in the foreseeable future she will recover from her psychiatric condition. Her psychiatric condition means that she is unquestionably incapacitated under the terms of the Mental Capacity Act 2005, in relation to the decision whether to engage in anti-retroviral treatment.
- She was visited just the other day by a member of the Official Solicitors’ staff, who has produced an eloquent attendance note. If 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.
- Suffice to say, that she is 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.
- If 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.
The Court had to weigh up what would be in her best interests
- In circumstances where AB is incapacitated, I have to make a decision on her behalf as to what is in her best interests. I have to consider a number of matters of a very obvious nature under Section 4 of the Mental Capacity Act 2005, but by virtue of subsection (6)(a), I have to consider her past and present wishes and feelings.
- 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.
- As far as her present wishes are concerned, there is no dispute: they are very strongly opposed to HIV treatment.
- 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.
- 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.
- The authorities are clear that wishes and feelings are important and that they must be fully taken into account, even when the party is seriously incapacitated. It is wrong, on the authorities, for this Court to conclude that because someone is seriously incapacitated their wishes and feelings are irrelevant.
- On the other hand, the crucial consideration that I have to have in mind is the extent to which AB’s wishes and feelings, if given effect, can properly be accommodated within the Court’s overall assessment of what is in her best interests.
- Like so many aspects of litigation, the test all depends upon the particular facts that the Court is presented with, and on the particular facts that I am presented with, I have 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.
- 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.
- 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.
- For the reasons I have given I am wholly satisfied that the treatment proposed and the means of administration are plainly in the best interests of AB and it is so authorised.