P, Re [2021] EWCOP 27

This case concerned P, a 60 year old woman and this judgment was concerned solely with the issue of whether P had litigation capacity.

P had been diagnosed with diabetes, paranoid schizophrenia and HIV.  Since 2018, P had refused to take the antiretroviral medication she had been prescribed to treat her HIV.  P had fixed delusional beliefs and ongoing auditory command hallucinations, and heard God telling her not to take her HIV medication, but rather to pray.  P had also previously seen snakes emerge from her HIV medication.

The NHS Trust sought orders and declarations that P lacked capacity to decide whether to take the HIV medication; that it was in P’s best interests to take her HIV medication; and, inferentially, that she should be made to do so.

At a hearing in February the Court made an Order that it was in P’s best interests to take her medication and she was directed to do so.  It was hoped that the order would result in P taking the medication but it did not.  At the time of that hearing P’s litigation capacity was not an issue and P’s consultant psychiatrist had said that P had litigation capacity despite the fact that she did not have subject matter capacity.

However, in March 2021, P’s care coordinator concluded that P did not have litigation capacity and P’s consultant psychiatrist undertook a further assessment and now also agreed that P did lack litigation capacity.  Unfortunately, the Official Solicitor was of the opinion that P did have litigation capacity and therefore she did not need to be involved.  Given the Official Solicitor’s stance the Court decided that submissions needed to be heard on the preliminary issue of litigation capacity before the substantive issue of P’s treatment could be considered.

The Court concluded that P did not have litigation capacity. The correct decision by P’s consultant psychiatrist about subject-matter incapacity should have led, almost inevitably, to an equivalent decision being made by her about P’s capacity to conduct litigation about that very subject matter.

The full judgment can be read here

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