Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6

Litigation capacity, bulimia (1) The court-appointed expert had wrongly treated Mostyn J's decision in An NHS Trust v P [2021] EWCOP 27 (that it is virtually impossible and would be completely illogical to say that someone has litigation capacity despite lacking subject matter capacity in medical treatment cases) as meaning the two tests were synonymous, and had wrongly confused the likely unwise instructions with lack of capacity to instruct a legal adviser: Q had capacity to litigate. (2) The judge also disagreed with the expert on capacity in relation to potassium treatment for hypokalaemia (a consequence of bulimia) and found it difficult to resist the conclusion that the independent expert's instinctive professional desire to save Q's life had allowed the "tail of welfare to wag the dog of capacity" (for example, the expert's opinion was that Q attributed little value to her own life and saw little of value in her future, but this did not necessarily mean that her ability to weigh life and death medical decisions in the balance was impaired; instead, it might represent a finely calibrated utilitarian calculation). Q had capacity despite her decisions being unwise and most likely to hasten her death. (3) For essentially the same reasons, she had had capacity when she made an advance decision to refuse treatment.


As is common the judge made minor errors about the MHA.

On the 30th August 2021, Q was discharged by way of a Community Treatment Order (CTO). ...

A CTO endures for an initial period of six months. Provisions for its extension, where appropriate, for a further six months and then annually thereafter are set out at MHA 1983 s.20A(1)-(3). It is unnecessary to set those out here. A patient subject to a CTO may apply to the First Tier Tribunal (Mental Health) (“FTT”) under MHA 1983 s.66(1)(ca) to discharge the CTO during the first six months of each period that it remains in force, but not otherwise: see ss. 66(2)(ca) and 77(1)-(2). ...

Q was referred to the Tribunal, pursuant to these provisions, but the FTT upheld a continuing need for a CTO, on 14th October 2021. It follows that Q will have a further right to challenge the CTO, in the event that it is further extended, on the expiry of the existing six-month period, i.e., from 27th February 2022.

A s3 patient who is placed on a CTO may apply to the tribunal at any time during each relevant period (i.e. the first six months, the second six months, and each 12-month period thereafter): see Community Treatment Order for details. Given the timescales, it is likely that Q applied to the tribunal rather than being referred. Februarys are always difficult but I think the first period would be 30/8/21 to 28/2/22 inclusive, and the second period 1/3/22 to 29/8/22 inclusive.


Essex newsletter 120.pdf
This case has been summarised on page 3 of 39 Essex Chambers, 'Mental Capacity Report' (issue 120, March 2022).

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Full judgment: BAILII


  • Advance decision cases🔍
  • Litigation capacity cases🔍
  • Medical treatment cases🔍

Date: 24/2/22🔍

Court: Court of Protection🔍



  • Lancashire and South Cumbria NHS Foundation Trust🔍
  • Quincy Bell🔍
  • East Lancashire Hospitals NHS Trust🔍
  • NHS East Lancashire Clinical Commissioning Group🔍
  • Lancashire County Council🔍

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Published: 3/3/22 23:14

Cached: 2024-07-19 20:24:36