Heart of England NHS Foundation Trust v JB (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 17 February 2014 |
| Neutral Citation | [2014] EWHC 342 (COP) |
| Court | Court of Protection |
| Docket Number | Case No: 12449750 |
| Date | 17 February 2014 |
[2014] EWHC 342 (COP)
IN THE COURT OF PROTECTION
The Honourable Mr Justice Peter Jackson
Case No: 12449750
Vikram Sachdeva (instructed by the NHS Trust) for the Applicant
Michael Horne (instructed by the Official Solicitor) for the Respondent
Hearing dates: 14 and 17 February 2014
Judgment date: 17 February 2014
The right to decide whether or not to consent to medical treatment is one of the most important rights guaranteed by law. Few decisions are as significant as the decision about whether to have major surgery. For the doctors, it can be difficult to know what recommendation to make. For the patient, the decision about whether to accept or reject medical advice involves weighing up the risks and benefits according to the patient's own system of values against a background where diagnosis and prognosis are rarely certain, even for the doctors. Such decisions are intensely personal. They are taken in stressful circumstances. There are no right or wrong answers. The freedom to choose for oneself is a part of what it means to be a human being.
For this reason, anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference.
There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005. This empowers the Court of Protection to authorise actions that would be in the best interests of the incapacitated person.
The Act contains a number of important general principles regarding capacity:
? A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain: s.2(1).
? A person must be assumed to have capacity unless it is established that he lacks capacity: s.1(2).
? The question of whether a person lacks capacity must be decided on the balance of probabilities: s.2(4).
? A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: s.1(3)
? A person is not to be treated as unable to make a decision merely because he makes an unwise decision: s.1(4).
? A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity: s.2(3).
These principles reflect the self-evident seriousness of interfering with another person's freedom of action. Accordingly, interim measures aside, the power to intervene only arises after it is has been proved that the person concerned lacks capacity. We have no business to be interfering in any other circumstances. This is of particular importance to people with disadvantages or disabilities. The removal of such ability as they have to control their own lives may feel an even greater affront to them that to others who are more fortunate.
Furthermore, the Act provides (s.1(6)) that even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible: this acknowledges that people who lack capacity still have rights and that their freedom of action is as important to them as it is to anyone else.
The temptation to base a judgement of a person's capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.
These basic considerations are of relevance in the present case. It concerns a 62 year old lady named JB. In earlier life, before she became too unwell, she undertook responsible work. She now lives with her twin sister. She is described by her Community Psychiatric Nurse as a strong willed woman who before her latest illness was good at needlework and art, enjoyed reading, attended her local church and took a lot of interest in community events.
JB has a number of mental and physical disabilities. In her 20s, she was diagnosed as suffering from paranoid schizophrenia for which she has received treatment of various kinds, including during several involuntary hospital admissions, the last being in 2005. Since then she has been subject to what is now known as a Community Treatment Order. She lacks insight into her mental illness but accepts antipsychotic medication to avoid being returned to hospital.
JB also has a number of chronic difficulties with her physical health. She suffers from hypertension, poorly controlled insulin-dependent type II diabetes, diabetic retinopathy and anaemia. She is a heavy smoker, which exacerbates peripheral vascular disease by reducing blood flow to her extremities.
In May 2013, JB attended a foot clinic with superficial ulcers to both feet. Between the beginning of June and the end of July, she was treated in hospital for an infection in the left foot. While there, she acquired an infection and became seriously unwell. Ultimately, this resolved, as did the condition of her left foot, and she was discharged. However, by August the condition of her right foot had deteriorated to the extent that it had become gangrenous. Medical advice was that it could not be saved and that auto-amputation was the best option. This means that the foot would become mummified and would in time separate itself from the leg by natural processes.
JB was again admitted to hospital for most of the month of October for treatment of her right foot. During this time, she was also suspected to have cancer of the bladder. There were discussions about whether she should have an amputation of her right leg to prevent the spread of gangrene and potentially life-threatening infection. JB did not agree to this and doubt was expressed about whether she had capacity to decide. A number of opinions were expressed, some doctors considering that she lacked capacity and others that she was simply making what was seen as an unwise decision. On one particular day, a clinical psychologist who considered the issue in the morning and again in the afternoon reached opposite conclusions. Another consultant psychiatrist, Dr B, was unable to decide either way. Her community psychiatrist, Dr O, reported on 21 October that: "There is evidence that Chronic Schizophrenia can impact on decision making and other cognitive functions. She is able to understand and retain information regarding proposed treatments however her ability to weigh information appears to be compromised. She has a long-standing pattern of coping with minimisation and historically underplays the concerns raised by clinicians about her health. Currently she reckons that if she continues to dress her foot then healing might occur but was unable to clearly show that she had considered the option of possible worsening sepsis and death. She mentioned that she would rather not think about these issues. She also said that everyone would die at some point…"
Because of the issue about JB's capacity, a referral to the Court of Protection was considered during this October admission. It transpired that she did not have bladder cancer. She continued to refuse amputation and it was considered that she was well and did not need surgical intervention. At the end of October she was discharged home.
On New Year's Eve, JB, having been unwell for several days, was readmitted and has remained in hospital since then. Her right foot was now entirely mummified and by the end of January it had come off, leaving an unresolved wound. Once again, the advice of the surgeons was that an amputation was necessary to allow the wound to be closed and to prevent it becoming infected. JB continued to refuse consent for this on some occasions, though she expressed agreement on others. Indeed, on 4 February she signed a consent form. Once again, doubts were expressed about her capacity, with no clear conclusion being reached. An example is the report of Dr B, who assessed JB on 14 January and concluded that "I am of the opinion that one needs to be certain of her capacity to consent or refuse the proposed intervention… However one cannot say with certainty she lacks capacity." It was again agreed that an application would be made to the Court of Protection.
In the meantime, discussion was taking place between surgeons, physicians and consultants in rehabilitation as to the nature of the amputation that would be most appropriate. At different times, it has been suggested that there should be amputation below the knee, through the knee or above the knee. Each option has important consequences in relation to the process of rehabilitation and the possibility of the patient walking in future. At the outset of this hearing the Trust's position was that a...
To continue reading
Request your trial
-
B (by her litigation friend, the Official Solicitor) v A Local Authority
...to make a decision merely because he makes an unwise decision. As Peter Jackson J said in Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7], the temptation to base a judgement of a person's capacity upon whether they seem to have made a good or bad decision, and in pa......
-
JK v A Local Health Board
...make a decision merely because they make a decision that is unwise (section 1(4) MCA and Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), Peter Jackson J at [ 36 Pursuant to section 2(1) MCA 2005, a person lacks capacity in relation to a matter if at the material time he i......
-
Cambridge University Hospitals Nhs Foundation Trust v Bf (by Her Litigation Friend, The Official Solicitor)
...A person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise (see Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7]). The outcome of the decision made is not relevant to the question of whether the person taking th......
-
R (on the Application of JJ) v Spectrum Community Health CIC
...to a number of cases including Re T [1992] 3 WLR 782 (refusal of a blood transfusion); Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP); and Re B v NHS Hospital Trust [2002] EWHC 429 (withdrawal of life support) (‘ Re 64 Ms Weereratne laid heavy emphasis on Re B. In that c......
-
The role of the Court of Protection in safeguarding
...17 NO. 6 2015jTHE JOURNAL OF ADULT PROTECTIONjPAGE387 7. Heart of England NHS Foundation Trust v. JB (2014) EWHC 342 (COP); (2014) 137 BMLR 232 atparagraph 7 per Peter Jackson J.8. Section 1(4) MCA 2005.9. JW 111510 and 11010604 (June 2014).10. For an example where a robust assessment of ca......
-
Is mental capacity in the eye of the beholder?
...fail to carry out an assessmentof capacity that is detached and objective.In Heart of England NHS Foundation Trust vs JB (2014) EWHC 342 (COP) (2014) 137 BMLR 232Peter Jackson J. put the matter in a different way (at paragraph 7):The temptation to base a judgement of a person’s capacity upo......