Posted on 1st October 2015
It is not easy to rebut the strong presumption in favour of the preservation of life but that is exactly what Mr Justice Peter Jackson has done in the Court of Protection in a well considered and compassionate ruling that may provoke disquiet in some circles whilst others may see this as a vindication of the rights of those less able to make decisions for themselves.
Mr B is a 73-year-old gentleman with a long history of mental health problems whose mental condition had deteriorated somewhat, leading to a hospital admission for treatment for his mental disorder. Whilst under psychiatric care he developed a serious infection in his foot, complicated by his history of diabetes. He was transferred to hospital but attempts at conservative treatment were proving inadequate, and doctors wanted to amputate his foot in order to save him from an overwhelming infection that would most likely lead to his death within a short period, in the face of opposition from Mr B.
It was common ground that Mr B lacked capacity to make a decision for himself, and therefore there was an obligation to act in his best interests. The Trust therefore made an application to the Court of Protection to allow amputation despite Mr B’s opposition.
The starting point is a strong presumption that it is in a patient’s best interests to stay alive, and both the hospital Trust and the Official Solicitor (who was instructed to act on behalf of Mr B), supported by the medical evidence of both a surgeon and a psychiatrist, agreed that the preferred medical treatment for Mr B was an immediate amputation, without which he would shortly die.
Mr Justice Jackson visited Mr B in hospital and spent some time considering his views, and whilst he agreed that he was unable to make a decision for himself (because he was unable to understand the information relevant to the decision, to retain and use the information and communication his decision, the test for capacity) nevertheless he had some strongly held beliefs, some of which were reproduced in the judgement:
“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.”
Mr Justice Jackson concluded that these comments were said with great seriousness, and that Mr B did not appear to be showing florid psychiatric symptoms or to be unduly affected by his toxic infection. He ruled that he was “quite sure that it would not be in Mr B’s best interest to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter. The application, which was rightly brought, is accordingly dismissed.”
The case is very fact specific: a decision from the Court of Appeal in 2014 agreed that there was no basis on which the Court could interfere with a Court of Protection ruling that an 83-year-old diabetic woman lacked capacity to consent to medical treatment and that a below knee amputation following a severe foot infection was in her best interests (Re X).
The full judgement of Wye Valley NHS Trust v Mr B can be read here.
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