Court of Protection Rules on Dental Treatment for Patient Lacking Capacity

Citation: [2023] EWCOP 56
Judgment on

Introduction

In the remarkable case of Lancashire and South Cumbria NHS Foundation Trust v BNK [2023] EWCOP 56, the Court of Protection was tasked with determining whether the administration of dental treatment, which could potentially involve force and restraint due to the patient’s expected resistance, was in the best interest of a patient (referred to as BNK) lacking the capacity to consent. This article analyzes the judgment delivered by Paul Bowen KC, sitting as a Deputy Judge of the High Court, to elucidate the legal principles applied and assess the case’s implications for future proceedings regarding healthcare decisions for those lacking capacity.

Key Facts

The patient, BNK, is a 36-year-old man with severe learning disability, autism, and Noonan syndrome. He exhibits resistance to medical intervention, necessitating the contemplation of using reasonable force and pharmacological restraint to administer dental treatment under general anesthesia. The urgency of the situation arises from BNK’s broken teeth believed to be causing pain and challenging behavior. BNK is a Jehovah’s Witness and has expressed, alongside his parents, objections to receiving blood transfusions, even to preserve life.

Several legal principles underscore the judgment in this case, primarily rooted in the Mental Capacity Act 2005 (the 2005 Act). These principles guide decision-making for individuals lacking capacity and include the presumption of capacity, the test of capacity, the duty of assisted decision-making, recognition that unwise decision-making does not equate to lack of capacity, the best interests assessment, the least restrictive alternative, and compliance with the Human Rights Act 1998.

Presumption and Test of Capacity

Under sections 1(2) and 2 of the 2005 Act, BNK must be presumed to have capacity unless established otherwise on the balance of probabilities. The test of capacity is based on whether BNK can understand, retain, use or weigh relevant information or communicate his decision, with incapacity linked to impairment or disturbance in the functioning of the mind or brain.

Best Interests Assessment

A comprehensive “best interests” analysis mandated by section 4 of the 2005 Act involves considering BNK’s welfare in the “widest sense,” including the medical, social, and psychological impacts of the proposed treatment. The court also considered whether the treatment could be achieved in a less restrictive manner in accordance with section 1(6) of the 2005 Act.

Human Rights Considerations

The court also acknowledged the need to respect BNK’s human rights under the Human Rights Act 1998, including Article 8 (right to private life and bodily integrity), Article 3 (freedom from inhuman and degrading treatment), Article 2 (right to life), Article 5 (right to liberty), and Article 9 (right to manifest a religion).

Outcomes

The judgment approved Option 2 for BNK’s dental treatment under anesthesia, with Option 3 (full dental clearance) as a possible alternative dependent on intraoperative findings and BNK’s reactions to treatment. The court determined that doing nothing (Option 1) could lead to the real risk of life-threatening conditions, outweighing the temporary distress caused by the treatment. Regarding BNK’s religious objections to blood transfusions, the court decided not to rule on that issue due to the low likelihood of its necessity.

Conclusion

This judgment highlights the delicate balancing act between respecting the autonomy and religious beliefs of those lacking capacity and the imperative of protecting their best interests and right to life. It affirms that while the right to make unwise decisions is reserved for those with capacity, the duty falls on the court to step in and make decisions that uphold the welfare and health of those who cannot do so for themselves. The case once again demonstrates that adherence to the Mental Capacity Act 2005 principles, alongside consideration of the individual’s human rights, remains paramount in the Court of Protection’s decision-making process.

In conclusion, the case of Lancashire and South Cumbria NHS Foundation Trust v BNK [2023] EWCOP 56 sets a precedent for future cases where medical intervention is necessary for an individual lacking capacity to consent, emphasizing the need for a nuanced approach that takes the person’s values and beliefs into account while safeguarding their health and well-being.