We should applaud Sir Nicholas Wall’s decision to make public the reasoning of the usually secretive court of protection

“Can a distinction be made between a wise act carried out by a madman, and a senseless act of folly carried out by a man in full possession of his wits? Wisdom and folly are surprisingly close.” Michael Foucault’s observation lies at the heart of the problem doctors and lawyers face in demarcating this boundary.

Last week Sir Nicholas Wall, the president of the family division of the high court, made a rare public judgment disclosing insights into the usually secretive inner workings of the court of protection (COP), which makes “declarations about whether someone has the capacity to make a particular decision”. The COP, as the public guardian, is empowered to make decisions behind closed doors that it regards as being in its wards’ best interests, including giving coercive medical treatments such as sterilisations, abortions and vasectomies. In light of these decisions as to what is in a patient’s “best interests”, the legal safeguards for patients take on much greater significance, as they only have real meaning if they also allow you to refuse treatment.

In this case, the court ruled that a 55-year-old woman did not have capacity because she suffered from two phobias, one of which was nosocomephobia – a fear of hospitals, which must be a fairly common anxiety. Having disclosed or exhibited this and also her needle phobia, she was duly diagnosed and deprived of her capacity and will receive invasive surgery for cancer. In accordance with the legal test set out in the Mental Capacity Act 2005, she was deemed unable to make a capacious choice because her medical conditions impaired the functioning of her mind to make any decision about her treatment.

Consistently, the courts have opined that capaciousness should not be confused with the actual decision made by the patient, however grave the consequences. To usurp this hallowed presumption offends patient autonomy. A doctor’s challenge requires empirical testimony that a patient is experiencing a condition that interferes with their brain’s ability to make a functional – rather than a rational or wise – decision. An anorexic is force fed against his or her will on the basis of his or her underlying psychological condition. Note to self: be less cavalier in telling doctor that I have never had an operation as am terrified of having an anaesthetic and have in the past avoided hand surgery on this basis.

However, some beliefs confound empirical analysis. One patient thought her blood was evil “because it is red”. Clearly irrational, she disclosed: “It carries evil around my body. Although the blood given in transfusions is perfectly healthy and clean once given to me, it mixes with my own and also becomes evil. Therefore the volume of evil blood in my body will have increased and likewise the danger of my committing acts of evil.” Mr Justice Charles ruled her incapacitated and suggested that “it seems to me that this assertion and belief is a misconception of reality”. The judge thought her views capable of being “alternatively symptoms or evidence of incompetence”.

If one considers the refusal itself as a symptom or evidence of some underlying misconception of reality to challenge capaciousness, consider Emma Gough, a Jehovah’s Witness. Aged 22, she had complications following the birth of twins and refused a life-saving blood transfusion on the basis of an incoherent, if not bogus, religious belief, leaving her two children without a mother. Religion is not a medical condition but clearly can strongly direct an arbitrary decision to refuse treatment based upon a personal morality that is a misconception. Would the doctors have adopted the same approach if a patient suggested they were a member of a Jedi Knight sect, something no less rational than religion, to make the same decision?

In seeking to protect patients from benevolent but paternalistic doctors who may intuitively disagree with their patient’s choices, it is important that the legal response to this Foucauldian conundrum the rules are clear, coherent, applied universally and transparent. Sir Nicholas Wall’s decision to open these closed doors should be welcomed. For my part, I will simply say nothing about my phobia and deprive the doctor of the ability to challenge me – unless of course they come up with a medical condition for that.