Judge rules that man has mental capacity to refuse hospital treatment

A Court of Protection judge ruled that the father of two, in his 40s, made a valid ‘advance decision’ to refuse hospital treatment.

(Nick Ansell/PA) (PA Archive)

A father of two in his 40s who does not want to receive hospital treatment even though he may not live to see the new year has won a fight to have his wishes respected.

The man, who has Asperger syndrome, weighs less than six stones and says eating causes him stomach pain.

Medics think his problem should be investigated but the man told a judge on Tuesday that he had made an “advance decision” to refuse hospital treatment five years ago.

He said he had a hospital “phobia” and did not want to have any kind of invasive treatment.

One of the consequences of my decision today, to put it bluntly, is that you may die. I am putting the decision-making process entirely in your hands

Mr Justice Hayden

Mr Justice Hayden decided the man had the mental capacity to make such a decision and ruled that his advance decision to refuse treatment was valid.

He analysed evidence at a hearing in the Court of Protection in London, where judges consider issues about people who may lack the mental capacity to make decisions, and said the man could not be identified in media reports of the case.

Lawyers representing NHS Surrey Heartlands Integrated Care Board, based in Leatherhead, which has responsibility for the man’s care, had asked the judge to consider the case as a matter of urgency.

The man thanked the judge for respecting his wishes.

Mr Justice Hayden heard that the man survived on water and a nutritional drink called Fortisip, and had refused to have Covid or flu vaccines.

“There is a real risk that (he) may not survive the Christmas period,” said the judge.

One of the consequences of my decision today, to put it bluntly, is that you may die. I am putting the decision-making process entirely in your hands

Mr Justice Hayden

“If he is exposed to infection he does not have the physical stamina or strength left to effectively resist it.”

The judge told the man: “One of the consequences of my decision today, to put it bluntly, is that you may die. I am putting the decision-making process entirely in your hands.”

The man told the judge: “Thank you for your time and patience and for respecting my wishes.”

Barrister Emma Sutton, who represented the health authority, outlined detail of the case and said the man made his advance decision in 2017, when in his late 30s.

She said he used a template produced by an organisation called Compassion In Dying.

A GP visited the man regularly and raised concerns he could die over the festive period without treatment, the judge was told.

I am clear it is a capacitous decision

Mr Justice Hayden

Mr Justice Hayden said he had to decide whether the man had made a “capacitous” decision – not a wise decision.

The judge added: “I am clear it is a capacitous decision.”

He said, in any event, he did not think forcing treatment would be in the man’s best interests.

Mr Justice Hayden was told the man, a keen guitarist who owns a 1962 Fender Stratocaster, lived alone but had two adult children who regularly visited.

He asked the man what the children would want. The man replied: “Respect my wishes, I suppose.”

The man was not represented by lawyers and spoke to the judge via a telephone link.

Mr Justice Hayden said he could adjourn the hearing to allow the man time to find a lawyer.

But the man said he would rather the judge made a decision.

His children were not involved in the hearing.