To date judges have generally approved life sustaining treatment in cases where patients have lacked capacity. However, the decision of Mr Justice Jackson in the case of Wye Valley NHS Trust v Mr B is noteworthy he did not defer to a presumption in favour of prolonging life but gave weight to the wishes of the person who lacked capacity.
- Mr B was 73 years old with a long history of mental illness, including auditory hallucinations in which he heard the voices of angels and the Virgin Mary.
- He had developed Type II diabetes, which was poorly controlled.
- His partner had died in 2000. He was described by the judge as isolated but not unsociable. He appeared content with his life.
- He developed a foot ulcer in July 2014 requiring treatment but, despite various interventions, the ulcer persisted. During his lengthy stay in hospital he continued to refuse antibiotics for his ulcer and medication for his diabetes.
- In August 2015 Mr B’s mental health improved but he suffered a deterioration in his physical health. By this time his foot had started to putrefy and he developed osteomyelitis. While he continued to refuse all treatment, he allowed his dressings to be changed. Mr B stated clearly that he was not afraid of death, did not want to go into a home or to have further treatment.
An application was made by the NHS Trust in September 2015 for a declaration as to lawful medical treatment, including specific authority to carry out an amputation to Mr B’s leg. At that point the only treatment option was amputation. He was given days to live. With surgery his life expectancy was predicted to be around three years. He was assessed as lacking capacity to make treatment decisions about his foot and the judge accepted this evidence.
The issue in this case was whether Mr B’s treating doctors could lawfully amputate his foot, against his wishes, in order to save his life.
The judgment provides some useful guidelines for those making difficult treatment decisions in relation to those who lack capacity. Observations which are enshrined in the current legislation and case law were touched upon, such as ensuring that the patient is involved as fully as possible in decision making.
The importance of wishes and feelings
In coming to a conclusion about what treatment options were in Mr B’s best interests, the judge looked carefully at his wishes and feelings. The judge said there was no limit to the weight the court chose to give to someone’s wishes, feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due. He outlined that, to state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. He said that it would be wrong in principle to apply any automatic discount from their point of view. Mr B’s religious beliefs were observed by the judge as being intrinsic to who he was and they did not deserve to be described as “delusions”.
The judge emphasised his views that:
It is important to ensure that people with a disability are not, by the very fact of their disability, deprived of the range of reasonable outcomes that are achievable to others.
For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront than it would be to others without disabilities.
For those with a long-standing mental illness, their wishes and feelings can be inextricable to them as a person.
The judge commented that it was respectful to recognise Mr B for who he was: a person with his own intrinsic beliefs and values. In fact, he said that it was no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it was to speak of an unmusical Mozart!
It should be noted that, where there is an issue about capacity, the appropriate course of action is to take legal advice and where necessary, make an application to the Court of Protection. While the judge dismissed the application, he said it had been rightly brought.
How we can help
We have a team of experienced healthcare lawyers available 24/7 to assist with Court of Protection cases. For those readers who are clients we have detailed briefing notes on capacity and best interests decisions on our Healthcare Resource Centre.