The anatomy of incapacity

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.

Patients detained for the management of disorders of their mind, who also lack capacity to make medical decisions, must receive appropriate treatment for unrelated physical disorders.

Following his conviction for a criminal offence, BV, 64 years, (1) was detained under the Mental Health Act 1983 due to the summative effects of his autism, schizophrenia, learning disability, depression and anxiety. But he also had a renal cancer, presenting with abdominal pain and haematuria. BV was aware of the tumour, and able to recite the consequences of and options for treatment. But he was scared; and refusing surgery. Serial imaging revealed no metastases, but within a month of the first images, a second CT demonstrated tumour enlargement, although the tumour remained confined to the kidney. Laparoscopic nephrectomy was proposed.

BV felt that he was unlikely to recover, either physically or mentally, from tumour resection, and was unable to pay attention to reassurance that he would likely recuperate. His psychiatrist felt that BV’s anxiety and fear were disproportionate to the rather low risk of complications, but he was unable to understand or weigh up the benefits and risks of surgery. Whilst BV could both understand the words being spoken to him and retain that information, he could not apply that knowledge to his own clinical situation. BV also had some apparently mistaken beliefs, which were not reflected in his clinical records. He thought that he had been diagnosed with ‘groin cancer’ at the age of 28; with the assistance of the healing powers of prayer, his groin cancer had not impinged upon his health. BV believed that his new presentation was indicative of a sin that only God could understand, and that ‘…prayer will help his prognosis.’ He described a fellow church-goer whose tumour reduced to the size of a pea following prayer and faith healing.

A psychiatrist told the court that BV’s refusal to accept that this story was untrue reflected his autism, in terms of rigidity of thought. This in turn influenced BV’s view of his likely renal cancer, whereby he felt that he could rely on ‘God’s will and religious healing’ to minimise the impact of his illness. He wished to be buried whole.

The court was told that BV’s autism made it difficult for him to construct abstract thoughts, leading to a restriction of his ability to understand. Nonetheless, he could retain information; he was able to confirm that he had been diagnosed with a tumour; and that following surgery, he would have a 90% chance of a 10-year survival. But without this his life expectancy was 2 years.

BV’s learning disability led him to confabulate, allowing him to conceal memory deficits, and gaps in both his understanding and executive function. This had an impact on his ability to explain his decisions, and thoughts, resulting in a rather confusing narrative in relation to his views on surgery.

The psychiatrist told the court that ‘…BV’s deficits in executive functioning lead to a limitation of his ability to process the information and apply it to his current situation and to appropriately think and plan for his future. This was reflected in his beliefs relating to his cancer; that this had no significant impact on his life due to this being “God’s will”.’ BV’s illness caused his deficits in abstract thinking, which in turn lead to an inability to weigh or balance surgical risks and benefits. This explained why whilst BV understood some of the surgical matters that were applicable to his decision to agree to or refuse surgery, he was unable to weigh and balance the surgical risks and benefits, as he could only contemplate his ‘overvalued thoughts and benefits’. He was also ‘…unable to take on medical opinions and his family’s thoughts, concerns and distress caused by his potential refusal of treatment.’

The details revealed in the judgment enable us better to understand the reluctance of BV to undergo surgery. Plainly, patients incapacitated by disorders of their mind will have protean reasons for declining surgery.

But BV’s story illustrates how surgeons and patients can contextualise the clinical situation that connects them in entirely different ways. This difference may present profound difficulties, which may sometimes only be resolved in a court.

The court found that BV lacked capacity to consent to laparoscopic tumour resection, but that this was in his best interests. Surgery was successfully completed 3 days later.

(1) In Re BV (Medical Treatment-Renal Cancer:Nephrectomy) [2025] EWCOP 41

Mr Robert Wheeler
Department of clinical law
July 2026