Mr B, aged 73, has Type II diabetes and a severely infected leg caused by chronic ulceration; and unless doctors amputate his foot he will die, possibly within a few days, because his wound has passed the stage where removal of infected tissue is an effective treatment. If he has the operation, however, he may live for a few years more. He also has paranoid schizophrenia, which deprives him of the capacity to make the decision for himself. For a long time, Mr B has experienced persistent auditory hallucinations in which he hears voices of angels and of the Virgin Mary. He told the judge that he did not consider himself to belong to any particular religion, saying “I’m not fussy“, but explained that Mary wanted him to be a Roman Catholic .
In May 2015 Mr B was detained compulsorily under s 3 of the Mental Health Act; nevertheless, he continued to resist medication for his diabetes and antibiotics for his foot, with the consequence that by the time his mental health had begun to recover in August, his physical health had markedly deteriorated . A best interests meeting in September concluded that an application should be made to the Court of Protection and the matter first came before the court on 18 September, when the present hearing was fixed, reported as in Wye Valley NHS Trust v B  EWCOP 60. On 25 September the judge, Peter Jackson J, met Mr B in his hospital room for over an hour in the presence of his clerk, who took a note, and a nurse, Mr F, who helped the judge understand everything that Mr B wanted to say .
The considerations in favour of the operation as being in Mr B’s best interests were that without surgery he would soon die, that his death was avoidable, that there was no indication that his quality of life before he came into hospital in July 2014 was unacceptable to him and that it was possible that after an operation he would adapt and recover some quality of life .
The principal consideration against the procedure was that Mr B opposed amputation in the strongest possible terms and had done so over the entire period of about a year during which amputation had been under discussion. He made the following statements in answer to Peter Jackson J’s questions:
I don’t want an operation.
I’m not afraid of dying, I know where I’m going. The angels have told me I am going to heaven. I have no regrets. It would be a better life than this.
I don’t want to go into a nursing home, [my partner] died there.
I don’t want my leg tampered with. I know the seriousness, I just want them to continue what they’re doing.
I don’t want it. I’m not afraid of death. I don’t want interference. Even if I’m going to die, I don’t want the operation.
The judge reported that he said all this “with great seriousness, and … did not appear to be showing florid psychiatric symptoms or to be unduly affected by toxic infection” . Moreover, there were risks associated with surgery in a person of Mr B’s age and characteristics, it might compromise his mental health, he might lose his leg altogether, his current quality of life was, in his own estimation, very poor and, in any event, he could never live in his own accommodation again: “The best that can be hoped for is that he might be discharged to a care home or, more likely, a nursing home, which he does not want” :
“On the evidence, the process of recovery and rehabilitation would occupy a considerable part in Mr B’s remaining lifespan. If things went as well as they could, he might be rehabilitated only to die” .
The principles on which the Court of Protection acts in a case of this kind are set out in the Mental Capacity Act 2005 and in a consistent line of authority built up during the past two decades and culminating in Aintree University Hospitals NHS Trust v James  AC 591. Those principles are stated at . The interest for students of law and religion is that Peter Jackson J declared that whether or not a person had the capacity to make decisions for himself, he was entitled to the protection of the ECHR and, in the present context, Articles 2 (right to life), 3 (inhuman or degrading treatment ) and 9 (freedom of thought, conscience and religion) were engaged [6: emphasis added].
His Lordship concluded that an enforced amputation would not be in Mr B’s best interests . In spite of his isolation,
“… he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his ‘fierce independence’, and it is this that is now, as he sees it, under attack  … His fortitude in the face of death, however he has come by it, would be the envy of many people in better mental health. He has gained the respect of those who are currently nursing him” [44: emphasis in original].
Operating on Mr B against his will would take away his remaining independence and dignity: “There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter” . Application dismissed.
Article 9 is mentioned only once in the judgment – and briefly at that; and Adam Wagner suggests on Twitter, with some degree of truth, that it is a lot safer for a judge to say that Article 9 is engaged than to attempt to distinguish a delusional crisis from a religious one and feels that Peter Jackson J was right to be sensitive to Mr B’s beliefs and not overly concerned about the delusional aspect.
Peter Jackson J’s conclusion at  was that Mr B’s religious beliefs were not delusional but, rather, “his faith and … an intrinsic part of who he is” – which would suggest that they carried considerable weight in his consideration of the case. Moreover:
“This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms” .
The judgment also serves as a salutary reminder that, for the purposes of Article 9, “thought, conscience and religion” are just that: they do not have to relate directly to any particular belief-system or religious denomination in order to be protected.
For much more expert views, see Capacity is not an off-switch on the Mental Capacity Law and Policy blog and Court of Protection upholds the right of a confused, lonely man to refuse treatment on UKHRB.