England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand London WC2A 2LL
		20th December 2016

MR JUSTICE MOSTYN:

1. As the terms of the order that I am being asked to make have been agreed between all parties, including the Official Solicitor who represents AB, I shall not give a lengthy judgment.
2. I will begin by stating that I approve fully the order that has been agreed and I duly make it. It provides for frequent reviews with a default of annual reviews even if there has been no event that triggers an earlier review which is entirely appropriate given the unusual facts of this case. I say unusual, in that I have not, in a number of years that I have been sitting in the Court of Protection, encountered facts such as these before, but on reflection I am not so sure that the situation is in fact likely to be that uncommon.
3. I am asked to, and I do 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.
4. I only have to state this for the unusual nature of the case to be revealed, but the circumstances in which these facts arise demonstrate that such a course is manifestly required in the best interests of AB, notwithstanding that her personal wishes and feelings would be entirely contrary to the course that is going to ensue.
5. AB is infected with HIV. HIV, as is well-known, is a retrovirus, which in layman terms attacks one's immune system. Specifically, as has been explained to me by Dr E, it attacks the group of lymphocytes, or white blood cells, known as CD4 cells, and these CD4 cells are a vital organic protection for the human species in the fight against infection. They are, as I have said, lymphocytes: white blood cells, and as most relatively well-educated people know, when you have an infection white blood cells are the first troops that arrive to fight the infection, and if they are compromised then your ability to fight infection is correspondingly damaged.
6. If HIV is left untreated then for most people, not necessarily all people, as has been explained for me, your quantity, or count, of CD4 cells will fall and your ability to resist infection will be correspondingly reduced. As the volume of CD4 cells reduces so the likelihood of development of AIDS arises. When the actual condition of AIDS arises it only takes a minor infection, a bout of pneumonia for example, for that to be lethal.
7. Thirty-odd years ago, when AIDS made its malign appearance in the human world, it was thought that to contract the virus was a near death sentence, although, as the doctor explained to me, some people, somewhat mysteriously, did not suffer the reduction in the volume of CD4 cells and lived perfectly normal lives with the virus; but that was a distinct minority. For the majority there would be, in all likelihood, a progression to AIDS and a macabre demise.
8. However, medical science has made extraordinary leaps forward in addressing this unpleasant phenomenon, and anti-retroviral drugs have been developed. They are called anti-retroviral drugs because they attack retroviruses, of which HIV is one. The way these drugs work is that they pin back the advance of the virus which would otherwise march forward, multiply and infect, destroying the CD4 cells. They not only pin it back but actually reduce the quantity of infected cells.
9. The anti-retroviral drugs are so effective that, the doctor explained to me, it is possible for an infected person, after a certain period of treatment, perhaps to be measured in months or years, to live a normal life in almost all respects, including a normal sexual life, so that, extraordinary though it may sound, it is possible for someone who is in receipt of anti-retroviral treatment to have unprotected sex without risking infecting his or her partner. I would have thought that was almost impossible, but that is the evidence that I have received.
10. Furthermore, it is possible for a person who is infected to reproduce without the risk of bringing into this world an infected offspring.
11. One can see why, in theory at least, if it were possible to identify amongst the human race all those who were infected, why, within a generation, HIV could be eradicated. Of course, it might be said that that is a pipe dream, because we do not know everyone who is infected, and in some parts of the world, in the developing world, it would be difficult to identify all those who are infected, let alone to treat them all. However, it does mean, that in theory at least, elimination of this scourge is within mankind's grasp.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. As far as her present wishes are concerned, there is no dispute: they are very strongly opposed to HIV treatment.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com
This transcript has been approved by the judge.