Blackpool Teaching Hospitals NHS Foundation Trust v GWS and others (Capacity)

This matter concerns GWS. He is 18 years old and is currently in hospital where he has been since 10 June 2025 with concerns as to a possible gastrointestinal bleed and infection. The applicant, Blackpool Teaching Hospitals NHS Foundation Trust (Trust) seek determination of issues regarding GWS’s capacity to make decisions regarding his medical treatment, in particular the procedure to replace his stents, and decisions whether to discharge himself from hospital. In the event that the court determines GWS lacks capacity the court should determine what best interest orders should be made.

The other parties are GWS, through his litigation friend the Official Solicitor, Blackpool Council (the local authority) and NHS Lancashire and South Cumbria Integrated Care Board (the ICB).

An urgent authorisation to deprive GWS of his liberty was given on 13 June 2025. Following further assessment, a standard authorisation was made on 27 June 2025.

These proceedings were issued on 18 June 2025. Directions were made on 19 June 2025 listing this hearing on 25 and 26 June 2025.

The situation on the ground has developed during this hearing with the focus shifting to the relevant decisions for GWS being

his continued admission to hospital and his discharge from hospital; and

I have heard oral evidence from Mr I, Consultant Urologist, Dr F, GWS’s GP who assessed capacity on 14 May 2025; Ms B, social worker and trainee approved mental health professional (AMPH) who was part of the team that assessed capacity on 13 June 2025; Dr S, Consultant Psychiatrist, who assessed capacity on 22 June 2025 and Dr Glover, Consultant Psychiatrist,instructed as the joint expert.

The evidence concluded on 26 June 2025. During that day there had been significant disclosure from the local authority and the Trust. Directions were made on 27 June 2025 for further updating evidence from Dr Glover after he had considered the relevant recently disclosed records, together with updating clinical evidence from the Trust and updating evidence from the local authority and the ICB regarding accommodation and support plans in the event GWS was discharged.

The parties filed written closing submissions by noon 7 July 2025 and confirmed no party sought to further cross examine any of the witnesses or file any written submissions in response.

The court has been acutely aware of the understandable frustration felt by GWS as a result of the delay in the court reaching a decision. He has been seen and spoken to by a number of different professionals in what I consider to have been sub-optimal circumstances. Whilst recognising the enormous complexity of GWS’s situation there has been, at times, a lack of joined up planning and consistency in who he is seen by. The assessment on 13 June 2025 is but one example. The court has been kept updated since the hearing and welcomes the more consistent approach regarding professionals who GWS is seeing.

GWS is 18 years old. The court now has a comprehensive chronology provided by the local authority which details the difficult and traumatic childhood he has experienced from the age of six months. The chronology catalogues serious long term neglect, including physical and psychological abuse mainly due to chronic alcohol addiction by his mother. He suffered a serious sexual assault at the age of 10 years and has been using drugs, mainly ketamine, since he was 12 years old.

He lived with his mother until 2013, when he moved to live with his grandmother and step grandfather who were granted a special guardianship order in 2015. GWS remained there until 2019. Between 2019 and early 2024 he moved between his mother and his grandparents’ home. Between March 2024 and September 2024 he lived in semi-independent accommodation, moving to supported living from September 2024 until February 2025. He returned to his mother’s home in February 2025, and was in hotels in May 2025 before finally moving to emergency residential mental health accommodation prior to his current admission. From December 2024 GWS has had numerous admissions to hospital to the extent that between December 2024 and now GWS only spent 33 days living in the community.

Sadly, one of his special guardians died in May 2025, as did another close relative whom he considered a grandfather, within days of each other. This has, understandably, has a significant impact on GWS.

In April 2023 GWS presented with blood in his urine and significant bladder symptoms. On 12 June 2023 he was diagnosed with a very small capacity bladder, considered to be a consequence of ketamine abuse. In April 2024 a CT scan revealed bilateral hydronephrosis (dilation of both kidneys due to obstruction of the ureters by a thickened bladder) and he underwent a bilateral stent insertion in May 2024. The stents need to be changed every 6 to 9 months as they become encrusted and blocked over time. If they are not changed and become blocked this is a form of obstruction which would affect the kidneys: they would become bloated/congested. If the obstruction is not released the kidneys will fail with the risk of loss of one or both kidneys, sepsis and/or death if it remains untreated.

As set out above GWS has had multiple hospital admissions, particularly since December 2024. There have been five admissions since then: from 22 December 2024 to 17 February 2025; 25 February 2025 to 18 March 2025 (this admission was for ketamine intoxication, UTI and cholangiopathy); 21 March 2025 to 9 May 2025 (this admission followed refusing treatment for sepsis at home) ; from 24 May 2025 to 30 May 2025 (when he was weak and emaciated) and 10 June 2025 to date.

GWS was admitted on 10 June 2025 with dual incontinence, abdominal pain, frailty and a BMI of 10 with concerns regarding suspected gastrointestinal bleed.

An urgent authorisation to deprive GWS of his liberty was issued on 13 June 2025 following ‘extreme malnutrition, drug abuse – ketamine’. The lack of capacity as assessed by Dr E, Consultant Psychiatrist, Dr AS, Consultant Psychiatrist, Ms F an AMHP and Ms B, a trainee on 13 June 2025 was said to arise from an inability to retain information and use or weigh it. It was considered he would need ‘gentle physical restraint’ or ‘mild sedation’ to allow care and treatment with security required should he attempt to leave the ward. Following further assessment a standard authorisation was made on 27 June 2025.

Following Dr E’s conclusion that GWS lacked capacity to make decisions about his current care and treatment for his physical health, GWS’s care and treatment was recorded as

The evidence from Dr A, Consultant Acute Physician, reports that GWS has been largely compliant with his treatment and has not required restraint or sedation. He has at times said he did not want treatment or tests as he was feeling better but has then accepted these with some persuasion from staff. In his second statement Dr A confirmed GWS was responding well to antibiotics and did not consider he would require any more antibiotics after 24 June 2025. In addition, from his most recent blood tests Dr A did not consider GWS was in immediate danger of developing re-feeding syndrome but that would increase again if GWS stops eating and drinking. Dr A states ‘My understanding is that his tolerance is fragile and he remains susceptible to the risk of re-feeding syndrome – it would not take a very long period of lack of nutrition and hydration for this issue to become a life-threatening concern again’. GWS’s weight remains dangerously low and his recent blood tests indicate his liver function tests remain deranged. GWS refused any examination when first referred to gastroenterology and a change in medication has not improved the position; as a consequence, Dr A has requested a review by the gastroenterology team again. In his second statement Dr A listed the concerns about GWS being discharged:

Prior to his recent admission to hospital GWS was living in an emergency residential mental health crisis accommodation, the B Centre, which has refused to accept him back as it is not able to meet his needs. As a consequence, GWS does not currently have a confirmed place to live and therefore risks being street homeless on discharge.

GWS was seen by his GP, Dr F, on 14 May 2025. Her assessment at that time was he lacked capacity as he was unable to use or weigh information and this was due to a combination of his ADHD and chronic substance abuse. The note of her assessment at the time sets out the decisions she was considering, namely understanding around events that occurred in hospital, around medical treatment and the need for ongoing monitoring and treatment, understanding around nutritional status and the impact and decisions around declining treatment.

Mr I, Consultant Urologist, saw GWS on 19 June 2025 when he explained to him that his stents need to be changed on an urgent basis. GWS declined to have his stents changed as an inpatient but said he would consider having them changed once he had been discharged and was an outpatient. At that stage Mr I’s medical advice regarding the available options was to have the stents changed whilst GWS was in hospital. In his written statement, Mr I described whilst he can’t be certain as to when the stents will become blocked, when they do they can present with infection, poor urine output or pain. Mr I said the symptoms/indicators that the stents are blocked could also be silent. If action is not taken promptly following blockage of the stents then GWS may suffer significant damage to his kidneys and might even die. The procedure needs to be done under general anaesthetic. In his statement he also set out the risk regarding bladder removal which is increased if GWS continues to use ketamine and recommends examining his bladder under cystoscopy. This involves passing a small camera through the urethra into the bladder to allow examination of the bladder and assessment. Once this has taken place the existing stents would be taken out and replaced. Mr I estimates the operation will take between 20 – 30 minutes and for the majority of patients this is a day case with discharge on the same day. For GWS Mr I recommends that he remains in hospital for the operation due to wider concerns, such as his low body weight and infection.

Dr W, Consultant Anaesthetist, spoke to GWS on 23 June 2025. In his statement he sets out the increased risks of a general anaesthetic for GWS which are further increased if the stents become blocked and the surgery is required as an urgent/emergency procedure, with the added risks consequent on GWS having sepsis.

Prior to the evidence starting on 25 June 2025 it became clear that due to the relative improvement in GWS’s physical health through weight gain and the antibiotic taking effect it was possible that the stent procedure could be carried out relatively quickly, in the next day or so. That had not been discussed with GWS. Mr I and Ms L, matron, were able to discuss this with GWS. The note of that discussion made it clear GWS’s view had not changed, he wished to be discharged and for this procedure to take place as an outpatient.

Following the conclusion of the evidence on 26 June 2025 directions were made as outlined above. Discussions have continued with GWS; whilst he accepts the need for the stent replacement procedure he will only agree to it on condition he is discharged immediately after the procedure or is discharged and he returns for the procedure as an outpatient.

GWS has multiple physical health needs arising from his prolonged substance misuse. Those needs include:

Following his recent admission Dr SX, Assistant Chief Nurse and Interim Head of Safeguarding, considered GWS remains at extremely high risk due to the severity of malnutrition which means his vital organs are vulnerable to failure.

Dr A’s view in his statement was that the Trust were concerned if GWS self-discharged ‘there is a real risk he would die’.

In his written and oral evidence, Mr I said that if the stents were not changed the risks are that the kidney may be chronically damaged resulting in the loss of one or both kidneys, the patient becoming septic or dying.

GWS has an inconsistent relationship with his mother. On many occasions GWS has refused to see her or for information to be shared with her. He was close to his maternal grandmother (MS) who sadly died in early May 2025. He was in hospital at the time of her death and self-discharged against medical advice to attend her funeral. His half-sister’s grandfather (K) who GWS was also close to tragically died shortly afterwards. His funeral was on 13 June 2025. Hospital staff successfully encouraged GWS not to self-discharge and he attended the funeral online from hospital. GWS’s maternal step-grandfather (YS) has visited GWS in hospital but the recent information is that he plans to sell his property and move to a flat and consequently is not able to offer support for GWS.

GWS has had a number of capacity assessments recently which can be summarised as follows.

On 15 January 2025 his capacity to make decisions about care and treatment in respect of his low BMI and his understanding of the implications of declining personal hygiene were assessed by Ms N, adult safeguarding practitioner, who concluded he had capacity.

Ms N assessed him again with a consultant and dietician on 22 January 2025 with the same result about declining IV antibiotics as he was too tired and it burns when going through the cannula. At a further assessment on 27 March 2025 Ms N reached the same conclusion.

GWS was seen by Dr F, his GP, on 14 May 2025 who concluded he lacked capacity to make decisions around medical treatment as he struggles to use and weigh up the information presented to him to execute a decision.

On 15 May 2025 GWS was assessed by a safeguarding practitioner and a community sister who concluded he did have capacity to take a decision as to whether blood tests were taken.

On 30 May 2025 a clinical matron and a safeguarding practitioner concluded GWS had capacity to decide whether he self-discharged in order to spend time with his family prior to his grandmother’s funeral.

On 12 June 2025 two adult safeguarding practitioners found GWS had capacity but the details are not clear.

On 17 June 2025 a COP3 was prepared by Dr E who concluded GWS lacked capacity to make decisions about his medical care and treatment.

On 13 June 2025 the hospital gave an urgent authorisation and 22 June 2025 the local authority granted a request for a standard authorisation on the grounds that GWS lacked capacity to make decisions about his placement and care.

Due to the level of urgency when the application was issued the evidence in this case continued to come in during the hearing. The court heard oral evidence from Mr I, Dr F, Ms B, Dr S and Dr Glover on 25 and 26 June 2025. Updating evidence has been filed following the hearing which considers the more recently disclosed records and provides an update regarding GWS’s clinical condition and care planning.

When this application was made, the focus was on the risks to GWS if he self-discharged, including the risks of infection from non-compliance with his antibiotic regime, the consequences of his dangerously low body weight and the risks of re-feeding syndrome. By the time of the hearing the focus had shifted to the proposed treatment for replacement of the stents, and to his capacity to make that decision, as well as the need for the ancillary medical treatment and his discharge.

In his written and oral evidence Mr I set out his reasons for recommending the procedure to replace the stents should take place now. Just prior to giving evidence he had had a further conversation with GWS with Ms L, who GWS knows well. As set out in the agreed note of that meeting Mr I agreed GWS is well enough for the operation. In his most recent discussion with GWS Mr I said he set out the reasons in favour of having the operation and the risks if he didn’t. GWS’s response was that he wanted it to be done as an outpatient. GWS’s rationale is he wants to build himself up, life is easier if he is out of hospital, he feels he is getting better and remembers the pain and bleeding after the previous procedure. When Mr I outlined the risks of losing a kidney GWS said he would take responsibility for that. Mr I considered GWS understood the risks, but thought he was not in immediate danger. Due to the length of time since the stents were put in Mr I categorises this procedure as urgent.

Dr F has been GWS’s GP since the middle of 2024 and undertook a capacity assessment on 14 May 2025. As the safeguarding lead for the ICB she was aware of GWS before meeting him, as she had reports of hospital admissions and the deteriorating situation which she described as getting more complex and difficult. They first spoke on the telephone in November 2024 and she first saw him in person on his 18^th birthday. At that time he was in a supported living placement out of the area. She had been contacted by GWS’s step-grandfather who was concerned about him, the placement reported his pain and how GWS was struggling to manage. Even though he was living out of area Dr F’s practice agreed to keep him on their books due to the complexity of his situation and instigated an arrangement that they would see him on the day if he was brought in by his grandfather. Dr F described the grandfather as a good advocate for GWS. She was aware GWS’s mother had contacted the surgery but GWS did not consent for his medical care to be discussed with her. Following that visit, Dr F did not see him again until 14 May 2025 although she was aware there had been a number of hospital admissions. On 21 March 2025 she reported a series of phone calls regarding GWS being at the specialist mental health centre which provides crisis support. He had been discharged and was homeless on 18 March 2025, he had presented at the housing department and collapsed. GWS declined to engage, there were concerns regarding his capacity and it took more than one ambulance visit to get him to hospital. Her next contact was when a social worker contacted her and said GWS was staying at a hotel. Dr F agreed to visit with the social worker on 14 May 2025. She agreed that the focus then was GWS’s medical treatment generally and stent replacement was not part of their discussion. The visit lasted over an hour. Dr F described him as incredibly frail with a noted deterioration since she last saw him in November 2024. She reported GWS said he wanted to get better, he didn’t want to die yet, and, as she had described, he had not wanted to go to hospital in March 2025. In her view, there was a mismatch between what he said and what he did. In her view whilst he might have understood, he was not able to weigh up the complex issues to make an informed choice which was beyond a foolish or unwise decision. In her view this was because of his impairment caused by a combination of factors such as his ADHD whereby he makes an impulsive decision, the impact of the chronic drug use on his cognition as it will become a driving force, and the fact that he was then seriously malnourished which impacted his cognition as did his previous trauma which can cause flight or fright responses. In answer to Mr Lawson she agreed optimism regarding the future is a common experience for people dependent on drugs. She agreed that at the time when she assessed him on 14 May 2025 GWS was at a low point.

Ms B was present when Dr E undertook a capacity assessment on 13 June 2025. She is a deputy team manager of the autism team and was undertaking AMPH training. During that assessment GWS said the reason he was in hospital was because professionals keep bringing him back. When it was suggested that may have been said out of frustration she said that she had seen in previous records this was a long standing response to shut the conversation down and avoid making a decision. She considered many of his reasons are learnt phrases such as ‘too tired’, ‘I don’t want it in hospital’. She considers there is an impairment to GWS’s executive functioning so he shuts down rather than deal with the demands of making a decision and that this is due to his impairment caused by his ADHD and ketamine use. She has experience of neurodiversity and did not consider GWS was using or weighing the information provided to him. GWS says he does not want his life to end but is not able to recognise the barriers to that. She gave as an example they asked GWS why it would work now from the community when it had not worked before, his response was to say stop asking silly questions. In her view GWS’s constant deferring of the decision as a tactic to delay was evidence of his not understanding the consequences if he did not have the treatment. She said that she had put to him the fact that he perpetually deferred making the decision but did not have insight into this behaviour but recognised this was not recorded in her note. She also recognised that this was an assessment taking place shortly after he had watched the person he considered his grandfather’s funeral online. She acknowledged this was a difficult time for GWS and may explain his dismissiveness. She agreed the circumstances in which the capacity assessment was undertaken could have been done differently with more information about GWS’s childhood, an understanding of how information had been given to him and what processing time he had had. This would have been done over 3 – 4 visits. The assessment took about 20 – 30 minutes and there were four people in the room with GWS, three of whom had not met him previously.

Dr S, Consultant Psychiatrist, was also present on 20 June 2025 and considered GWS would say he would do a thing but was not able to do it. He did not consider he was able to weigh in the balance the significant risk to his health. GWS said he felt better but the medical evidence was the risk remains. Dr S said his personal feeling was to help this young person. In his view it crossed the boundary regarding capacity as GWS was not seeing the risk of death if the stents were not replaced. GWS said he was fed up and wanted to go home but the history shows his mother’s home is not a healthy environment due to alcohol abuse and the risks of him taking ketamine again. Dr S considered GWS’s inability to use and weigh is caused by the consequences of his ADHD and/or ketamine use. GWS wants to improve but his judgment is impaired because he is not following medical advice to help his health and he can’t see that point.

In her written evidence Ms W sets out that she has been GWS’s allocated social worker since March 2025, during that time GWS has been at the specialist mental health centre and at two local hotels funded by GWS. He has been supported by a package of care consisting of two visits per day. Since Ms W has been allocated GWS has been admitted to hospital three times and self-discharged on two occasions.

Ms W met with GWS and his advocate at the hospital on 16 June 2025 to gain his views around accommodation and care and support when in the community. She reports he then agreed to discharge to a nursing home. In her more recent statement, jointly filed with Ms H, lead nurse with the ICB they outline the care and support arrangements. Therapeutic input could be provided by a youth therapy counselling service. That can only take place with GWS’s consent, would take between 1 – 4 weeks to complete an assessment and the waiting list for appointments is approximately 8 months. Enquiries regarding support that can be provided to an inpatient revealed that the Mental Health Liaison Team would only assess a patient with an acute mental health presentation and that any mental health needs that require long term input would need to be referred via the Initial Response Service pathway. GWS remains open to the adolescent drug and alcohol service should he wish to access this service.

The local authority have completed a review of GWS’s social care needs. The local authority consider GWS continues to have a high level of need and such needs are required to be met with commissioned support. GWS has stated he wishes to live independently with a package of care in place and he would like that in the community. Reviewing the history of previous packages of care provided showed GWS declined the majority of visits prior to his last admission to hospital. Between 31 May 2025 to 11 June 2025 GWS cancelled all his visits apart from two. During the period from 24 - 27 February 2025 when GWS resided with his mother the carer noted that GWS needed medical attention which he refused. Between 10 May – 24 May 2025 GWS declined some care visits and support with personal care but did accept personal care on 22 May 2025. The local authority consider these entries evidence that he does not accept support with his personal care and is likely to require support in-between visits. The information from his previous supported semi-independent home is that GWS was served notice as they could not manage the risk or his level of care needs. His three previous admissions to the specialist mental health resource with a package of care in place have resulted in admission to hospital, demonstrating that level of support did not meet GWS’s needs.

As a consequence of this history the local authority are currently recommending a residential care home is sourced to meet GWS’s needs on discharge. This placement could also provide support and oversight for GWS should he undergo surgery. The local authority are actively making enquiries about suitable placements. This plan has been discussed with GWS and his advocate. Any placement would be reviewed in four weeks and the social worker will follow up with housing to arrange assessments to support GWS’s long term goal of living independently. The local authority have recommended 1:1 support in the community due to GWS’s current presentation of frailty and to encourage him to refrain from using substances outside of the placement.

The ICB’s updated position is that they do not yet have a clear plan for the reasons set out in the most recent statement. They are continuing to work closely with the local authority in creatively looking at what the options can be for GWS.

In her statement Dr SX, Assistant Chief Nurse and Interim Head of Safeguarding, set out that the Trust’s Adult Safeguarding Team has been involved managing and supporting GWS since May 2024. Their experience is that GWS is more likely to engage and respond positively to a firm and nurturing approach, which also respects his intelligence and promotes working together to get the best outcomes for him. Dr SX considers GWS is ‘more likely to resist care and treatment plans when he feels excluded from the decision making. He was a vulnerable child who has experienced significant childhood and poly-complex traumas. [GWS] has relayed his frustrations to us on numerous occasions, if he feels that he is not in control’. They advocate a trauma-informed collaborative approach when planning his care. GWS has expressed to them that his reasons for self-discharge previously are due to his frustration that no placement has been found and he does not see the point in remaining in hospital. He wishes to have an appropriate placement to try and stay away from the individuals who encourage and facilitate his drug use. In Dr SX’s most recent statement an update regarding GWS’s clinical condition is set out. His recent blood results are stable and chronically raised with no new concerns although show iron deficient anaemia, the latter was being treated. His weight has increased to 40.3kg which puts his BMI at 12.6. GWS got out of bed on 2 July 2025 and walked unaided across the ward, which is the first time this had been recorded since his admission. The clinical plan going forward is for GWS to have blood tests every 2-3 days, be reviewed daily by the medical team, continue with nursing clinical observations every 8 hours and continue 1:1 to prevent possible transfer of illicit substances.

The Trust staff have continued to have discussions with GWS regarding the stent replacement procedure; notes of the discussions that have taken place on 27 and 30 June and 1 and 2 July have been filed and further discussions were planned for 4 July 2025. In addition, there have been discussions with GWS about the effect of the Standard Authorisation and his rights to an IMCA and to challenge it. On 29 June 2025 there was an incident with a person GWS encountered when going to the shop in the hospital, limited details have been provided. The Trust have produced a urology surgical plan. The Trust have set out the concerns it has about any longer admission to hospital for GWS including the risk of hospital infection and the impact on GWS of keeping him in hospital against his wishes, which risks his continuing relationship with his clinicians who will continue to work with him to manage his life-long conditions. The Trust recognises also that the experience of being forced to submit to admission and procedures, which he clearly states are not on his terms, could have the effect of re-traumatising GWS given his background. As Dr SX states ‘It is therefore very important that any such steps are carefully weighed against the significance and immediacy of the risks that they are seeking to avert or mitigate against’.

His written report is dated 24 June 2025 where he concluded GWS had capacity. He gave oral evidence on 26 June 2025. Prior to giving oral evidence he had heard most of the oral evidence by the other witnesses, save for Ms B. He confirmed he saw GWS for about an hour on 20 June 2025.

He was asked about the impact of ADHD, PTSD, drug dependence syndrome and malnutrition and how any of those matters could relate to any impairment GWS had and the impact on his decision making. He confirmed the decision he was focussed on when he met GWS were nutrition and antibiotics, later in his evidence he referred to stent replacement and discharge from hospital. He considered GWS’s decision to be treated for the stent replacement as an outpatient to be ‘silly’ not disordered. When asked whether GWS understood the stent blocking might cause him to die Dr Glover said he seemed to but he did not go into that in much detail. When asked about the reasons GWS gave for not taking antibiotics, he said that he would say he couldn’t be bothered. Dr Glover considered making demands of GWS did not work. Dr Glover stated that with appropriate care GWS might be able to change the trajectory but considered the chances of success to be slim.

When Ms Roper took Dr Glover through the relevant information regarding the decisions about the stent procedure she asked whether Dr Glover discussed those with GWS, he said ‘I didn’t discuss that with him, GWS brought himself to A&E. When he acute he went to hospital, I thought he knew he could fail’. When Ms Roper put to him the evidence from Mr I that the symptoms could be silent Dr Glover said he didn’t discuss that with GWS, although that did not affect his conclusion as he considered GWS would be able to weigh that up. He agreed GWS understands it but doesn’t think it will happen to him. Dr Glover acknowledged his concerns that GWS’s drug taking was driving the decision making but concluded GWS retained capacity to make an unwise decision. As regards the impact of PTSD Dr Glover said he was surprised not to see any evidence of it bearing in mind the seriousness of the historical sexual assault.

When asked by Ms Roper about the impact of trauma and to what extent GWS’s decisions when he rejects advice are as a result of trauma, Dr Gover said they are fundamentally impacted by trauma. He agreed with Ms Roper that events in the past and recent double bereavement are an impairment that prevent him weighing up the information he is given about recommended medical treatment because it is driving him to reject advice and place no weight on it. In answer to Mr Lawson in what way trauma impacts of GWS’s decisions he said ‘In the way he been shaped by experiences he has had’.

In his addendum report dated 30 June 2025, Dr Glover considers there is a wider canvas of evidence that supports ‘strong and convincing evidence of the impact of GWS’s sexual assault on his overall psychological well-being. There is much clearer evidence that he has suffered from the symptoms of post-traumatic stress disorder (PTSD) than I was aware of at the time of my initial report’. He considers the documents he has reviewed have changed his opinion ‘slightly’ in that he believes there is stronger evidence of PTSD and that the ongoing symptoms continue to influence GWS towards misuse of substances. He also considers the documents more firmly identify GWS’s apparent relentless determination to access ketamine despite his evident understanding of the harm that the substance is causing to him. As a consequence he considers the decision regarding GWS’s capacity is more finely balanced than indicated in his initial report. He continues to believe ‘by a fine margin’ that GWS retains capacity to make decisions notwithstanding his PTSD and apparent addiction to ketamine. That conclusion is because at the time of his assessment he detected little impact on those conditions on his pattern of thinking. But he noted that the evidence of the primacy of drug seeking behaviour is strong and it is likely a body of Dr Glover’s peers would be equally split in considering whether GWS retained capacity or not. He concludes that if the court considers GWS lacks capacity regarding care and treatment his best interests would be served by remaining in hospital and for the treatment prescribed by his current treating clinicians to take place.

GWS wishes as expressed to the Official Solicitor are set out in the attendance notes on 23 and 24 June 2025 where he set out his wish to be physically better, to have better experiences in life, to have his own flat and how the loss of his grandparents had been a wake-up call for him. He did not want his mother to be involved, or for other members of his family to be contacted.

On 30 June 2025 ‘[GWS] said he would have the stents replaced tomorrow if he would be discharged the same day, I explained that this was not possible, but when the procedure does go ahead, that this procedure is usually a day case procedure, however if there are any complications then he would need to stay until he was medically fit. [GWS] said he understood this, but he doesn’t want to remain stuck in hospital against his wishes, which is what he feels is happening currently…he was annoyed as he felt no one is listening to him’.

On 1 July 2025 GWS expressed his views that he had been told that when he is 18 years he would make his own choices, now he is 18 years being prevented from doing so. Regarding the stent procedure the record notes GWS ‘is happy to go ahead with the procedure as he wants to remain well, however does not feel he wants this to take place this week. He is not sleeping well in the hospital…he wants to go into the procedure well rested…does not want to go into the procedure already frustrated and stressed as he is now. He want to know he will also be going home after this and he said he knows now that this would not be the case, so is not prepared to have the procedure this week’. He expressed the wish to go and live with his mother, was able to report his updated clinical position and agreed to have an iron transfusion and had a discussion for about 40 minutes about his feelings, the past and future plans.

The note of the ward visits on 2 July 2025 and 3 July 2025 confirm his wishes not to have the stent procedure as an inpatient as he cannot trust the hospital/courts would allow him home afterwards ‘so he will no longer agree to this’. He said he feels not listened to so doesn’t see why he should work with professionals when it’s all one sided and no-one is listening to his views.

On 4 July 2025 when the local authority indicated it may have identified a care home for him to be discharged to from 9 July 2025. GWS is reported to have indicated that he would stay there and return to hospital to have the proposed stent procedure in a week or so and then be discharged back to the care home. The local authority proposed to assess GWS’s capacity to make a decision about the discharge arrangements on 8 July 2025 (although this did not subsequently take place).

There is no issue between the parties as to the relevant legal framework. Mr Fullwood submitted a joint document that had been agreed by all the parties.

In relation to capacity the relevant law on capacity to make decisions regarding medical treatment was recently comprehensively set out by the Court of Appeal in University Hospitals Birmingham NHS Foundation v Thirumalesh [2025] 2 WLR 19 at [31] – [47]. That sets out the relevant principles and the critical stages the court needs to consider under ss2 and 3 MCA 2005. It rightly stresses the principle of autonomy and the need to guard against conflating an unwise decision with lack of capacity.

The Supreme Court set out in A Local Authority v JB [2022] AC 1322 at [79] the two questions the court is required to address when considering s2(1) MCA 2005 which is addressed in Thirumalesh at [43] – [47] as follows:

Generally, evidence for an impairment of, or disturbance in the functioning of, the mind or brain should come from a consultant psychiatrist or psychologist: NHS Trust v. JP [2019] COPLR 298 at [25]

In Norfolk and Norwich University Hospitals NHS Foundation Trust & ors v Jordan Tooke & ors [2023] EWCOP 45the court referred to the case law on the role of expert witnesses per Hayden J at [10] – [11] continuing

In determining the question of best interests, the MCA provides that:

In Norfolk and Norwich University Hospitals NHS Foundation Trust & ors v Jordan Tooke & ors [2023] EWCOP 45 the court also set out the law on best interests at [13] – [14].

In East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18MacDonald J considered MCA best interests including the impact of ECHR Art 2 and said:

“26.

In assessing whether it is a patient's best interests to receive treatment that will or may prolong their life, the fundamental principle of the sanctity of human life will weigh heavily in the balance. Art 2 of the European Convention on Human Rights (ECHR)  imposes a positive obligation to give life-sustaining treatment where responsible medical opinion is of the view that such treatment is in the patient's best interests, although that obligation is not absolute. As Munby J (as he then was) observed in R (Burke) v GMC [2004] EWHC 1879 (Admin) in a passage approved by the Court of Appeal:

"There is a very strong presumption in favour of taking all steps to prolong life, and save in exceptional circumstances, or where the patient is dying, the best interests of the patient will normally require such steps to be taken. In case of doubt, that doubt falls to be resolved in favour of the preservation of life. But the obligation is not absolute. Important as the sanctity of life is, it may have to take second place to human dignity…"

28.

Within this context it is also important to remember that, by reason of the inalienable and universal character of human rights, a person who lacks capacity has the same human rights as a person who does not lack capacity (see P v Cheshire West [2014] UKSC). In addition to rights under Art 2 of the ECHR, as articulated above, GH benefits from rights under Art 3 (right not to be subjected to torture or to inhuman or degrading treatment or punishment) and Art 8 (right to respect for family and private life) under the Convention. The assessment of GH's best interests must take account of these rights.”

The inherent jurisdiction is a doctrine of the English common law famously described as:

The seminal case is SA v A Local Authority & Ors (Re SA)[2005] EWHC 2942 (Fam), in which Munby J described the nature of the jurisdiction at [37] and [41] and his conclusions at [76] – [83].

Re SA was endorsed in DL v A Local Authority & Ors [2012] EWCA Civ 253, in which I had granted a wide ranging interim injunction restraining the behaviour of DL to his elderly (capacitated) parents, to care staff, and to other professionals. It was contended by DL that there was no jurisdiction to do so post-MCA 2005.

The Court of Appeal confirmed that the inherent jurisdiction survived the passing of the MCA 2005. McFarlane LJ made observations about the scope and extent of the inherent jurisdiction at [53] – [54]; [63]-[64] and [66] – [68].

In her careful and well considered submissions, Ms Roper identifies the decisions that the court is now asked to make are whether GWS has capacity to make decisions about his ongoing admission to hospital and when to be discharged; make decisions about his medical treatment and conduct this litigation. If GWS is found to lack capacity in those areas then the court is asked to consider whether it is in his best interests to remain in hospital for a short period to receive medical treatment, in particular urological surgery to replace stents in his ureters.

If the court finds that he has capacity Ms Roper invites the court to consider whether it is appropriate to invoke the inherent jurisdiction of the High Court and make orders limited to those necessary to keep him from the most acute risk of serious disability or death.

In relation to capacity Ms Roper submits the issue in this case is finely balanced, with cogent evidence in both directions. She submits the combination of the diagnosis of ADHD, chronic substance misuse and the background of trauma have all impacted negatively on GWS’s psychological development and cognitive functioning which taken together constitute an underlying impairment of his mind or brain for the purposes of the MCA 2005.

Whilst the combination of these factors do not for the much of the time render GWS unable to make capacitous decisions about his life, his medical treatment and his status as an inpatient in hospital, his current circumstances increase his underlying vulnerability. He has been profoundly underweight, has been subject to a serious infection and has recently lost two of the three supportive adults in his life and believes he has been rejected by the third.

Ms Roper submits when GWS’s reasoning process is examined, whilst he understands and retains the information relevant to the decisions in issue he is unable to use and weigh that information. The most likely cause of that inability is the combination of GWS’s underlying impairments as intensified by his current precarious circumstances. Ms Roper submits this situation is likely to be temporary for GWS but the need to replace the stents is urgent and the situation has to be considered as it is now. It is recognised that it is anticipated he will regain capacity in the near future, particularly if he is provided with appropriate support.

Ms Roper describes Dr F’s evidence as cogent and compelling but submits that it needs to be considered in the context of the circumstances at the time, namely GWS’s grandmother had died very recently and GWS had discharged himself from hospital a few days earlier to attend the funeral. Ms B accepted that the circumstances of the assessment were sub-optimal regarding the timing and the number of people present. Ms Roper submits that the information given in oral evidence of the assessors’ challenging GWS on his constant deferral of following through his decisions, and his response to that, should have been recorded in the assessment. . Ms B conceded that she felt a more in depth assessment was required with more information about the background and more than one visit.

Ms Roper submits Dr Glover’s oral evidence needs to be considered in the light of records only becoming available after he gave his evidence which, through no fault of his own, he was not able to consider, in particular the CAMHS and local authority records. Those records, she submits, contain relevant background regarding GWS’s chronic trauma and the attempts he has made to stop taking ketamine which have been unsuccessful. In addition, at the time Dr Glover saw GWS the focus was on his malnutrition and infection rather than the need for stent surgery. Dr Glover confirmed he had not discussed the stent procedure with GWS in detail.

Ms Roper considers the updated evidence from Dr Glover accepts that he now considers the issues of capacity to be more finely balanced and concludes that there is clearer evidence about PTSD and the diagnosis of ADHD. The updated evidence from the local authority and the ICB set out that no suitable accommodation has been found for GWS. The evidence from the Trust describes GWS’s clinical condition as improving, a plan for the proposed surgery and notes of meetings with GWS on 27 and 30 June and 1, 2 and 3 July 2025.

Those notes record that GWS said he would be accepting of the stent surgery as an inpatient if it could be guaranteed he could go home the next day, but otherwise would only accept it as an outpatient. Most recently he said he would not accept it as an inpatient at all and raises the issue that he is now saying if he is discharged he may not return to hospital, even if he feels unwell.

Ms Roper recognises that all the professionals have had to work in difficult and urgent circumstances with a challenging, changing and dynamic evidential picture regarding GWS’s capacity.

In her capacity analysis Ms Roper first identifies the decisions:

To make the decision about treatment Ms Roper submits the critical information GWS needs to understand, retain, use and weigh regarding medical treatment includes the risks to which he is exposed if he does not accept the medical advice about treatment. Although he feels well he remains physically frail. Even though the stents are functioning now they could fail at any point and such failure could be symptomless. If they fail and are not operated on promptly there could be lifechanging kidney damage and potentially death. In relation to the decision to discharge he would have no available accommodation, no support to help monitor his position. His history suggests he has not been able to look after himself in such circumstances to prevent a rapid deterioration in his health and return to using ketamine. Over the last six months GWS has only managed to be out of hospital for 33 days. Ms Roper recognises that also relevant is that GWS dislikes being in hospital and hopes that someone will be able to offer him accommodation.

Ms Roper submits GWS does understand and retain the information about his medical treatment which is supported when all the evidence about the discussions with GWS about his treatment is considered as a whole. In addition, he understands the information he is given about his discharge, he knows there is no available accommodation and support in place. Dr SX’s evidence supports this.

Ms Roper submits the more difficult question is GWS’s ability to use and weigh that information. Mr I’s evidence supported that conclusion as GWS was disregarding a critical aspect of the medical evidence, namely that the stents could fail without warning or immediate symptoms. When that was raised by Mr I GWS responded that he would take responsibility for that. This answer, Ms Roper submits, disregards the risk and deflects discussion about it. This echoes his response that because he is feeling fine now it is not too risky to continue to defer having the operation, again deflecting using and weighing the information.

Ms Roper submits if GWS was truly weighing up the choice between his wish to live, get better and improve his situation against his wish to have an element of control over his treatment (for example, insisting on his immediate discharge) he would be entitled to prioritise whichever he chose, which would be a value judgment for him. For example, he could say that he understands deferring the operation will increase the risks to his health that would indicate he is using and weighing the advice from Mr I. The evidence demonstrates that he engages up to a point, but when the increased risks are raised he does not engage in further discussion. Dr Glover recognised he did not discuss the stent surgery with him other than a more generalised conclusion that GWS ‘seemed to understand risk of renal failure’.

Ms Roper submits similar points can be made about GWS’s ability to use and weigh the decision to discharge himself from hospital in his present circumstances. Mr I gave evidence about discussing with GWS the risks of his appetite going down and the consequence being that he may be unfit for surgery. In his response GWS considered he could go to his mother’s, she knows him and if he starts deteriorating she will let the hospital know and look after him and when he is better he can have the operation. The evidence from the local authority records sets out the history and confirms the continuing difficult relationship with his mother which suggests what GWS set out as being complete unrealistic. When Dr Glover discussed this with GWS, he referred to a cousin providing accommodation and did not really engage with the reality that he may be street homeless. GWS had no real grasp of reality of what it would be like if he walked out. The cousin referred to by GWS does not feature in any of the historical records or been mentioned in any of the discussions since the hearing. Dr Glover accepted there were matters GWS was not dealing with stating that ‘my sense is that this is his capacity and fundamentally impaired and will never change – this is who [GWS] is’. Ms Roper submits that provides insufficient analysis on this critical issue.

Ms Roper recognises that in considering capacity the individual only needs to understand the salient factors but that, in her submission, depends on the nature of the decision in question. Here the relevant factors involve serious and long term implications for GWS. Ms Roper submits ‘the decision to ignore medical advice carries clear and high risk of long term disability or death; given [GWS’s] clear wish to survive and improve his situation on life, the inconsistency between his words and his actions suggests that he is in fact unable to weigh up the risks he is told about…this is not a case of [GWS] understanding but choosing not to give weight to the harsh reality of his situation, the risks of acute kidney failure and the risks of discharge when he has nowhere to go; rather this is an inability to use and weigh the most critical pieces of information in reaching a decision about treatment and a decision on discharge’. This aligns with the assessment undertaken by Dr S.

Ms Roper submits that when turning to consider the reason for the inability there is evidence that GWS is suffering from multiple impairments including a diagnosis of ADHD, PTSD, GWS’s ongoing apparent dependence syndrome in relation to ketamine and elements of autism although recognises the latter has not been assessed.

A combination of factors, including his childhood trauma which would have impacted on his brain development, his current circumstances (including his frailty and the cycle of his repeated admissions to hospital) and significant recent personal losses have created what Ms Roper calls a ‘perfect storm’. This will have had an acutely destabilising impact on him and exacerbated any underlying difficulties he has in making decisions about his future when considered in the context of his ADHD, PTSD and dependency on illegal substances. She submits it is neither necessary nor helpful for the court to try and unpick the issue of causation further, and to try and pinpoint which element of GWS’s diagnoses lie behind his inability to use and weigh the information. Ms Roper submits there is no requirement for a formal diagnosis, nor for any such dissection of the evidence, for the court to conclude that GWS is lacking capacity (see MacDonald J in North Bristol NHS Trust v R [2023] EWCOP 5 at [46] – [49]). As a result it is submitted the court should consider ‘the full range of his diagnoses – his underlying impairments – and his current frailty and double bereavement and should assess the global impact on [GWS’s] decision making of all those factors together’. Whilst Ms Roper considers that on a day to day basis there is much force in Dr Glover’s opinion, she submits that the Trust considers, acknowledging it is finely balanced, that GWS’s underlying impairments, compounded by his present circumstances, are preventing him from using and weighing up the information relevant to decisions about treatment and discharge. Ms Roper submits ‘The Acute Trust suggests this is one case where it is relevant to look at the outcome of the decision, comparing it with other decisions [GWS] has previously made, and to consider whether the more obdurate stance taken by [GWS] to the advice to have treatment which is not just recommended, but is critical to his wellbeing and survival, can be explained by anything other than a combination of his underlying impairments and the exacerbating circumstances of his condition’. Ms Roper submits it is also relevant to consider GWS’s approach to the question of surgery, treating it as a negotiation to retain control. Whilst she submits that is understandable the stakes are high, including life changing damage and potential death. If he has such a compulsion to exert such control despite and in the teeth of those risks that may only be explicable in the context of either his previous trauma and PTSD, the autistic features of his presentation, aggravated by the loss of his previous familial support.

Turning to best interests Ms Roper recognises the difficult balance between the clinical necessity for the operation to replace his stents to avoid the risk of catastrophic kidney failure has to be balanced with GWS’s wish to have that operation on his own terms and that imposing it on him has serious consequences both in principle and in practice. The negative effect of imposing the treatment on him, especially if restraint is required, and the disempowering effect of taking away any element of his control or choice over his own body. When considering the evidence Ms Roper submits the issue is not whether GWS should have the proposed procedure but when it should take place. She recognises the current uncertainty and GWS’s wish not to be in hospital carries with it the potential that being forced to undergo the procedure could re-traumatise GWS. Ms Roper submits that this must obviously be weighed in the balance but is outweighed by the serious risks of not going ahead with the procedure.

Whilst the focus of the Trust is on the medical treatment it supports an appropriate package of accommodation, care and support being provided to enable GWS to leave hospital when he is medically fit to do so.

In the event that the court determines GWS does have capacity Ms Roper submits the court should consider whether it should invoke the inherent jurisdiction. She submits GWS falls within the third class of cases identified by Munby J in Re SA [2005] EWHC 2942 (Fam) which included ‘physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs’. Ms Roper submits that GWS is a vulnerable adult being impeded by underlying mental impairments, physical weakness, life circumstances and drug use, and the shock of bereavement from making free and informed decisions about medical treatment and discharge. GWS wishes to have the medical treatment but only on his terms which are not compatible with that treatment being optimised. If he leaves hospital he is likely to deteriorate and fail to re-attend in time to prevent serious kidney damage. Requiring him to have the proposed procedure before discharge is a ‘limited use of the court’s jurisdiction which would constitute a limited interference with [GWS’s] Article 8 right to bodily autonomy, that being justified by the State’s positive obligation to take all reasonable steps to protect his right to life’. To enable that process to take place he would need to be confined for a short period of time to provide the surgery and ensure GWS was fit for discharge thereafter.

MrAnderson, on behalf of the local authority supports the submissions by the Trust on capacity and best interests. They too accept the decision is finely balanced. They agree the focus is on GWS’s ability to use and weigh information and agree with the Trust that the diagnostic aspect of the test should be considered holistically. Mr Anderson confirms the local authority has completed a review of GWS’s care needs. The latest information the court has is that a care home has been identified and would be able to accept GWS from 9 July 2025 and there is a proposal to assess GWS’s capacity regarding his discharge arrangements on 8 July 2025. The local authority does not support the Trust’s submission regarding invoking the inherent jurisdiction regarding it as a ‘very significant infringement of [GWS’s] right to bodily autonomy under Article 8 ECHR and a very significant extension of the inherent jurisdiction’.

On behalf of the ICB Mr Fullwood also supports the Trust’s submissions on capacity and best interests, recognising that the ICB’s role in GWS’s life is relatively limited at present. In his submissions he draws the courts attention in particular to the evidence given by Dr F, GWS’s GP. As Mr Fullwood submits ‘The Council currently hold statutory duties to assess and provide accommodation and care for [GWS] in the community pursuant to Part 1 of the Care Act 2014. They have discharged those duties by completing a care and support assessment and care and support plan dated 3 July 2025. Both documents are appended to the joint Council and ICB statement dated 2 July 2025. The court will see from that statement that the Council are leading the search for community options and that the ICB is supporting them in that endeavour. Pending a CHC eligibility decision the ICB has confirmed that they will contribute to the funding of a suitable placement and package of care in the community subject to its normal statutory checks and procedure.’

On behalf of the Official Solicitor Mr Lawson’s measured and detailed submissions include a helpful factual summary taken from the recently disclosed records.

As regards capacity they too focus on using and weighing information in s3(1) MCA 2005. They rely on Dr Glover’s evidence in his first report, his oral evidence and his addendum report where he recognises that capacity is more finely balanced but he considers GWS retains capacity to make decisions notwithstanding his PTSD and apparent addiction to ketamine stating ‘I reach that conclusion because at the time of my assessment I detected little impact of those conditions on his pattern of thinking’.

Mr Lawson submits Dr Glover’s evidence is supported by Ms V’s account of GWS’s own words focused on his future but also aware of the issues that impact on him. Mr I stated that GWS wanted to prepare for the procedure and describes too many things going on. Mr Lawson submits the courts should be aware of the protection imperative and Dr Glover’s evidence and conclusion was given being aware of the risks for GWS. He concluded that GWS is using and weighing information and that leaving hospital to get on with his life (and returning for surgery) may be deeply unwise but, Mr Lawson submits, that it would be a ‘classic (and improper) outcome outcome-led approach to use this as a basis for deciding that a young and impulsive man (“that’s who [GWS] is”) was unable to make this decision. The Official Solicitor invites the court to conclude that [GWS’s] decisions about the proposed serious medical treatment (in particular) do not show an inability to use and weigh information or make a decision. The Official Solicitor recognises that this is a fine balance but considers the conclusion is supported by the more clear evidence that any inability is not, in any event, “because of an impairment or disturbance in the mind or brain”.

Mr Lawson accepts whilst the “diagnostic criterion” does not require a diagnosis the impairment/disturbance still requires medical evidence. It cannot be reasoned back to the functional requirements in s 3(1). He submits all of the medical evidence is limited as save for Dr F each psychiatrist only met GWS once, in hospital. Dr E and Dr F were not asked to assess capacity in relation to the stent surgery, Dr E assessed GWS in less than optimal conditions. As a result, submits Mr Lawson, all the evidence is limited and requires interpretation. As he submits ‘Dr E’s COP3 does not identify any impairment/ disturbance. Dr AS refers to “a delirium component” and “years of ketamine abuse”, Dr S gives “ADHD, history of ketamine intake” , not expressly describing a dependency syndrome. Dr F saw [GWS] in the community and at a low point. She identifies ADHD, a dependency syndrome and poor nutritional status.’

Mr Lawson submits there are relatively few cases on substance use and invites the court to distinguish between (i) the immediate effects of substances, i.e. intoxication; (ii) dependency syndromes; and (iii) neurological damage caused by substances. Dr F explains dependency as a cycle of being under the influence, craving and withdrawing understood to have both physiological and psychological elements. Dr Glover accepted this categorisation and in his first report considered GWS’s drug seeking behaviour was not a dependence syndrome. In his addendum report he identifies an ‘ongoing apparent dependence syndrome in relation to ketamine’ and an ‘apparently relentless determination to access ketamine’. Mr Lawson submits care is needed with how any incapacity arising from drug-seeking behaviour is framed and whilst the wish to take ketamine may be driving his strong wish to be discharged there is no direct evidence of that, or that he is unable to use or weigh information regarding surgery because of a wish to leave and take ketamine. Mr Lawson accepts that Dr Glover’s view has changed in his addendum report regarding PTSD and ADHD where he refers to clearer evidence that GWS has suffered from symptoms of PTSD and that the diagnosis of ADHD is clearer.

Mr Lawson submits there is little if any evidence that GWS is unable to make any of the decisions in issue because of ADHD or PTSD or ketamine. As regards PTSD Dr Glover links it to drug taking but by a fine margin does not change his conclusion as at the time of his assessment he detected little impact of those conditions on his pattern of thinking. Mr Lawson submits that the more recent discussions with GWS do not establish that the impulse to seek drugs is rendering him unable to make decisions about that surgery.

Mr Lawson also submits that the court needs to consider with care any findings that addiction is the basis of incapacity in respect of discharge. It could not be a basis to deprive someone of their liberty under schedule A1 MCA 2005 as it does not meet the qualifying requirements in paragraphs 12(b) and 14 which cross refer to the MHA 1983 definition of mental disorder and then excepts certain conditions. At s1(3) MHA 1983 dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of s 1 (2). As a consequence, he submits, that any deprivation of liberty under MCA and on the basis of substance dependence could only be authorised by the Court under s4A MCA 2005. However, he submits, Parliament has enacted a specific scheme under schedule A1 MCA 2005 which leaves addiction out of the scheme. In a s21A challenge the Court would usually leave the question of authorisation of a deprivation of liberty to the standard authorisation and not itself take over that role (see DP v Hillingdon [2020 EWCOP 45 paragraph 45-46).

Mr Lawson submits it may be difficult for the court to determine capacity regarding discharge in the absence of some information for GWS’ about where he can live. He has expressed a wish to live with his mother but there is limited information and the history can’t be ignored. There is also evidence of a care home that could accommodate him which GWS has indicated he would accept, preferably going there without any deprivation of liberty authorisation.

As regards capacity to conduct proceedings Mr Lawson submits there is only limited information about that but submits if the court finds that GWS lacks subject matter capacity it would be possible to hold on present evidence that he lacks capacity to conduct proceedings or there is reason to believe he does. (see Sheffield City Council v E [2005] Fam 326 [49])

Turning to best interests Mr Lawson acknowledges the objective medical best interests are clear. Whilst there is evidence of the anaesthetic risk of surgery those need to be considered in the context of what the best medical option is, namely to replace the stents.

As regards discharge there is limited information before the court as to options and the court is likely to require a clear plan with the result that GWS best interest require him to remain in hospital until a proper discharge plan is created. The actual terms of the deprivation could be left to the standard authorisation system.

GWS’s wishes and feelings are not reported to be against the proposed surgery in principle but is against having it without a brief period out of the hospital first. His most recent views are that he now trusts the NHS, courts and social care less. As Mr Lawson submits, the decisions apparently in his best interests would reduce his autonomy, interfere with his Article 8 rights and be against his wishes and feelings.

Balancing all these factors if the question arises Mr Lawson submits the Court would ‘be bound to decide that [GWS] should have infections treated, should receive nutritional supplements, should have his blood monitored and should have stent surgery. As well as being advised on clear medical evidence as, in essence, required, all these interventions are the basis of a safe discharge.’

Mr Lawson submits the Official Solicitor does not support any orders being made under the inherent jurisdiction as it is facilitative rather that dictatorial (per McFarlane LJ in DL v A Local Authority [2013] Fam 1). The Official Solicitor’s position is that ‘The Court either cannot or should not give consent to surgery and any associated restraint of a capacitous patient because of an unwise decision, however burdensome the patient’s social circumstances may be’.

GWS is a young person who has experienced an extraordinarily difficult background as detailed in the papers. Despite that many people who meet him note that he is very polite, considerate and engages well with staff. He has had to manage repeated assessments and has very understandably been frustrated by that and the delay in determining this application. Importantly he remains focussed and optimistic about what he wants in the future. His aim is to live independently in a flat of his own.

His history reveals his mother had chronic mental health difficulties and alcohol abuse, as a consequence she struggled to impose any boundaries or provide consistent care from when GWS was six months old. More recently she has been accused of providing GWS with ketamine. GWS’s father left soon after his birth. GWS witnessed domestic abuse to his mother by a subsequent partner. He once needed to call an ambulance for her. GWS was subjected to a serious sexual assault at the age of 10 years, was taking ketamine from the age of 12 years and was probably subject to exploitation to move drugs for those supplying the ketamine. GWS was cared for by his grandparents but that became difficult due to their ill health. His grandmother and the person he considered to be a grandfather both died within days of each other in May 2025. For the last year GWS has had significant ill-health, repeated hospital admissions with a consequent risk of chronic disability.

Over the past six months he has had numerous hospital admissions when he has been frail, suffering from self-neglect, poor self-care and emaciation only to self-discharge and return back to hospital days later. Since December 2024 he has only been out of hospital for about 33 days. Dr F’s description of GWS when she saw him on 14 May 2025 provided a graphic illustration of the reality of that for GWS. GWS is undeniably at risk as the records show that without proper care he has been found lying in his own urine with a BMI of just above 10.

There is no real issue about the medical evidence. His stents require replacing, that procedure is already significantly overdue. If they are not replaced they will at some point block, probably soon. In that event if he does not have treatment promptly he risks losing one or both of his kidneys with a consequent risk of death. There is a 10 - 20% chance that any blockage will be symptomless which would increase the risks of damage to his kidneys and possibly lead to death.

The starkness of the situation laid out above graphically illustrate the enormous difficulties GWS has faced.

It is agreed and I accept that the only part of the functional test in s3(1) MCA 2005 that is in issue is using and weighing information.

One of the challenges in this case has been the changing landscape regarding the relevant decision that needs to be made and the evolving picture in relation to the evidence. No party has sought to further cross examine any of the witnesses.

All parties are agreed the issue in relation to capacity is finely balanced and the evidence in relation to capacity needs to be considered in the context in which it is given. Some of the assessments, such as that by Dr F, took place in a particular context. GWS had self-discharged, attended his grandmother’s funeral and was physically very frail resulting in him being re-admitted to hospital shortly afterwards. The assessment undertaken on 13 June 2025 was only hours after GWS had attended the person he considered a grandfather’s funeral online. The assessment involved four people in the room only one of which GWS had met previously. It was rightly described as taking place in sub-optimal circumstances. Dr Glover’s assessment consisted of a one hour meeting and was in circumstances where the focus was more on nutrition and infection, with only very limited discussion about the decision to have the stent replacement procedure. In his addendum report Dr Glover has re-evaluated his conclusions in the light of the additional evidence he has seen so that he states ‘On balance, therefore, I think the decision regarding [GWS’s] capacity is more finely balanced than I indicated in my initial report. I continue to believe, by a fine margin, that [GWS] retains capacity to make decisions notwithstanding his post- traumatic stress disorder and apparent addiction to ketamine. I reach that conclusion because at the time of my assessment I detected little impact of those conditions on his pattern of thinking. The evidence, however, in favour of the primacy of drug seeking behaviour is strong and it is likely that a body of my peers would be equally split in considering whether [GWS] retains capacity to make decisions about care and treatment’.

I agree with Ms Roper that the decisions at issue which fall to be made by GWS if he has capacity to make them, and by the court on his behalf and in his best interests if he does not, are

The evidence demonstrates that the critical information regarding medical treatment that GWS needs to understand, retain, use and weigh includes what the procedure involves, the effect of the procedure and the risks to which he is exposed if he doesn’t accept the medical advice about treatment and the fact that whilst he is continuing to improve he remains frail. The evidence from Mr I, which I accept, demonstrates that although the stents are functioning now they could fail at any point, without warning and possibly without any symptoms that could prevent him being able to get to hospital for treatment. If such treatment was not given promptly there could be lifechanging damage to his kidneys and potentially death. If he discharges himself now he has no available accommodation and has no support in place to assess whether he needs readmission. The history suggests he is not able to look after himself in such circumstances to avoid rapid deterioration in his condition nor fulfil his wish not to take ketamine. Also relevant is the fact that GWS dislikes being in hospital and wants to resume his life and hopes someone will offer him accommodation.

I agree with Ms Roper that there is evidence GWS is not using and weighing up the relevant information about treatment. Mr I gave a detailed account of how he explained the need for GWS to have the stent replacement surgery and whilst he considered GWS understood the risks of not accepting the procedure he disregarded a critical aspect of the medical advice that the stents could fail without warning or immediate symptoms, so that even though GWS said he would return to hospital urgently it may be too late. When pressed about that by Mr I, GWS said he would take full responsibility of that, which does not, in my judgment, engage with and use and weigh the risks involved. In the same way that he has stated as he feels fine at the moment he does not consider it risky to continue to defer the operation. This is also demonstrated also by his more recent position that he would have the surgery but only on the basis of immediate discharge or as an outpatient. As Ms Roper submits if GWS was truly weighing up the choice between his wish to live, get better and improve his situation against his wish to have some control over his treatment, he would be entitled to prioritise whichever he chose. That would be a value judgment for him. For example, if he said that he understood by deferring the operation it will increase the risks regarding lifechanging damage to his kidneys that would indicate he is using and weighing the advice from Mr I. The evidence demonstrates that whilst GWS does engage in discussion to a point, when the increased risks are raised he ceases to engage and resorts to saying he feels fine at the moment or will take responsibility.

The reliance by the Official Solicitor on Dr Glover’s opinion is, in my judgment, undermined by the fact that Dr Glover accepted he did not discuss the proposed surgery in detail with GWS other than stating in evidence that he considered GWS seemed to understand the risks of renal failure and had no reason to doubt understood it. However, there was no discussion of the detail and the risks that had to be balanced in reaching a decision as there was with Mr I and Ms L on 25 June 2025.

The same factors are in play in relation to GWS’s ability to use and weigh the decision to discharge himself from hospital in his present circumstances. Mr I discussed with him the risks of leaving before the operation was carried out, including that his appetite can go down and he may be unfit for surgery. GWS responded that he would go to his mothers, she knows him and if he started deteriorating she would contact them and look after him. The evidence of longstanding neglect throughout GWS’s life and the continuing difficult relationship with his mother suggests this is wholly unrealistic. Dr Glover’s evidence was that he did discuss this issue with GWS who referred to a cousin he could live with. Dr Glover agreed that in not recognising that the reality of discharge may well be that he is street homeless and focussing on a cousin who does not feature in GWS’s history GWS had no real grasp of reality of what it would be like if he self-discharged. As Dr Glover said this illustrates there are ‘ingredients in the scales [GWS] is not dealing with’. I agree with Ms Roper this demonstrates that GWS is not using and weighing important matters that are relevant in reaching his decision regarding discharge.

I recognise that failure to take on board medical advice per se cannot be sufficient to establish an inability to use and weigh that information but here the decision to ignore medical advice carries clear and high risk of long term disability or death. This needs to be considered in the context of GWS’s clear wish to survive and improve his situation in life. The inconsistency between his words and actions also support the conclusion that he is unable to use and weigh the risks he is told about. This is not GWS choosing not to give weight to the harsh realities of his situation, namely acute kidney failure and the risks of discharge when he has nowhere to go. I agree with Ms Roper this is an inability to use and weigh the most critical pieces of information in reaching a decision about treatment and a decision on discharge.

In reaching this conclusion I am acutely aware of the presumption of capacity, to consider whether any further support can be made available to GWS, the need to avoid the protection imperative or for any conclusion to be outcome led. The evidence demonstrates GWS has continued to be given support with his advocate and there being more consistency in those who speak to him. I do not consider at this stage any further support can be provided. In my judgment, taking the evidence as a whole, I have reached the conclusion, on the balance of probabilities, that GWS is unable to use and weigh the relevant information in relation to the decisions set out above. Even making allowance for the fact that it is not necessary for him to understand all the detail of the information there are salient factors here which involve serious and long-term implications for GWS that he is not using and weighing in reaching his decision.

Turning to consider the reason for this inability there is, in my judgment, considerable evidence that GWS is suffering from multiple impairments of his mind or brain within the meaning of s2(1) MCA 2005. He has a confirmed diagnosis of ADHD, clear evidence of PTSD, an ongoing dependency syndrome in relation to ketamine and, possibly, elements of autism although there has been no formal diagnosis in relation to the latter. I agree with Ms Roper that it is the combination of those matters taken together with his current circumstances that creates what she calls the ‘perfect storm’. Dr Glover’s addendum report made clear he considered there was stronger evidence of PTSD, that the symptoms of that are likely to influence GWS towards misuse of drugs and his relentless determination to access ketamine despite understanding the harm it causes. His conclusion that GWS retained capacity on a fine balance was based on his assessment that he detected little impact of those conditions on his pattern of thinking. However, Dr Glover accepted he did not discuss in any detail the decision about whether or not to have the stent procedure so was not fully able to consider that in the context of the particular decision in question. In the light of what MacDonald J set out in North Bristol NHS Trust v R Ms Roper submits, and I agree, there is not a requirement for a formal diagnosis. The MCA does not require the ‘impairment of, or disturbance in’ to be tied to a specific diagnosis. The court is not precluded from reaching a conclusion on the question in the absence of a formal diagnosis or the court being able to formulate precisely the underlying condition or conditions. As MacDonald J stated in North Bristol NHS Trust at [48] ‘the question for the court remains whether, on the evidence available to it, the inability to make a decision in relation to the matter is because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

I agree with Ms Roper that on a day to day basis there is much force in Dr Glover’s conclusions. The Trust has carried out multiple assessments of GWS’s capacity and has reached the same conclusion, that he has capacity. However, having considered all the evidence that position has changed and the evidence supports a conclusion, on a fine balance, that GWS’s underlying impairments compounded by his current circumstances are currently preventing GWS from using and weighing the information relevant to decisions about his treatment and discharge. It is acknowledged that a capacitous individual may make a decision in the face of advice even where the outcome is catastrophic. Here there is evidence that GWS is not using and weighing relevant information about the outcome of his decision, such as any stent blockage being symptomless and the life changing consequences of that in circumstances where he expresses a clear wish to live and improve his life. This conclusion is also supported by GWS’s approach to the question of surgery, imposing conditions that do not properly use and weigh the medical evidence about the consequences of that. If GWS has such a compulsion to exert control despite those significant risks that, on a balance of probabilities, can only be explicable in the context of and because of his impairments.

I agree with the Trust that the evidence rebuts the presumption of capacity and GWS does not currently have the capacity to make decisions about his treatment, particularly the treatment to replace his stents, and does not have capacity to decide to discharge himself from hospital prior to that surgery being undertaken. I agree this decision is time specific and should be kept under active and close review.

As regards capacity to conduct proceedings I agree with the Official Solicitor that in the light of my conclusions regarding subject matter capacity that GWS also lacks capacity to conduct proceedings.

In relation to best interests GWS accepts in principle that the stent procedure should be undertaken which accords with the clear medical advice. There are risks in relation to the general anaesthetic as outlined by Dr W but those risks are outweighed by the need for the stent procedure to be done. Mr I considered the need for this procedure to be done as urgent. It is significantly overdue, a blockage could occur at any time and could be symptomless thereby increasing the risks of significant kidney damage or death. I have carefully considered the treatment plan and have fully taken into account the risks of re-traumatising GWS bearing in mind his background, the procedure taking place without his express consent and with any element of restraint. However, these important considerations are in my judgment ultimately outweighed by the risks of not going ahead with the operation. As the Official Solicitor submits, the court is bound to decide that GWS should have infections treated, should receive nutritional supplements, should have his blood monitored and should have stent surgery. This conclusion is not only supported by the medical evidence but, importantly, all of these interventions are the basis of a safe discharge.

Turning to the issue of discharge on the information available to the court it is not in GWS’s best interests to be discharged prior to the stent replacement procedure being undertaken. Looking further ahead it is critical for GWS that appropriate accommodation and support is identified and put in place for him and that he is able to make decisions with actual concrete options to consider. As the situation on the ground remains very dynamic, including an assessment taking place on 8 July, I will hear further submissions on this and any interplay with the existing standard authorisation and any challenge to that under s 21A MCA 2005.

I fully recognise that the decision I have reached may not be welcomed by GWS. I have carefully considered his wishes and feelings, they have not been ignored and have been weighed in the balance in the decision I have reached. I sincerely hope that there can now be a collaborative plan put in place for the stent procedure to take place, without any further delay, so that concrete plans can be put in place to manage a planned discharge for GWS. This can mean he can start taking the steps towards achieving the independence he so clearly wants, with appropriate support in place.