Kings College Hospital Nhs Foundation Trust v C v
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 30 November 2015 |
| Neutral Citation | [2015] EWCOP 80 |
| Court | Court of Protection |
| Docket Number | Case No: COP 1278226 |
| Date | 30 November 2015 |
[2015] EWCOP 80
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Macdonald
Case No: COP 1278226
and
Mr Michael Horne (instructed by Trust Solicitors) for the Kings College Hospital NHS Foundation Trust
Miss Katie Gollop (instructed by Official Solicitor) for the First Respondent
Mr John McKendrick (instructed by Bindmans) for the Second Respondent
Hearing date: 13 November 2015
INTRODUCTION
A capacitous individual is entitled to decide whether or not to accept medical treatment. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient. In Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 102 Lord Donaldson observed that:
"An adult patient who…suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered… This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent."
This position reflects the value that society places on personal autonomy in matters of medical treatment and the very long established right of the patient to choose to accept or refuse medical treatment from his or her doctor ( voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).
Within this context, where a patient refuses life saving medical treatment the court is only entitled to intervene in circumstances where the court is satisfied that the patient does not have the mental capacity to decide whether or not to accept or refuse such treatment. Where the court is satisfied, on the balance of probabilities, that the patient lacks capacity in this regard, the court may take the decision as to what course of action is in the patient's best interests.
The question in this difficult and finely balanced case is whether C has the capacity to decide whether or not to consent to the life saving treatment that her doctors wish to give her following her attempted suicide, namely renal dialysis. Without such treatment the almost inevitable outcome will be the death of C. If the treatment is administered the likelihood is that it will save C's life, albeit that there remains an appreciable and increasing possibility that C will be left requiring dialysis for the rest of her life. C now refuses to consent to dialysis and much of the treatment associated with it. She is supported in that decision by her family, and in particular her two elder daughters G and V.
Within this context, and by reason of a concern on the part of her treating clinicians that C lacks capacity to decide whether or not to consent to dialysis, Kings College Hospital NHS Foundation Trust (hereafter 'the Trust') has applied to this court pursuant to s 15 of the Mental Capacity Act 2005 for a declaration that C lacks capacity to make decisions about her medical care and treatment.
The Trust further seeks a declaration pursuant to s 4A and s 15 of the Mental Capacity Act 2005 that the Trust and its staff are authorised to provide such medical care and treatment to C as they judge to be clinically indicated, to prevent C from leaving hospital without agreement and to use necessary and reasonable physical and/or chemical restraint for the purposes of giving effect to the declaration with respect to medical care and treatment.
On the evening of Friday 13 November 2015, having considered the evidence filed in this matter and having heard oral evidence from three psychiatrists and C's daughter G and the submissions of counsel, I decided that, on balance, C does have capacity to decide whether or not to consent to dialysis. In the circumstances, I dismissed the application of the Trust. I now set out my reasons for coming to that conclusion. This matter was heard in open court. There is a reporting restriction order in force which prohibits the publication of certain information likely to lead to the identification of C as being the subject of an application with respect to serious medical treatment, including the identity of the doctors and other medical professionals treating C.
BACKGROUND
C is a person to whom the epithet 'conventional' will never be applied. By her own account, the account of her eldest daughters and the account of her father, C has led a life characterised by impulsive and self-centred decision making without guilt or regret. C has had four marriages and a number of affairs and has, it is said, spent the money of her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption of alcohol has been excessive and, at times, out of control. C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and 'living the high life'. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C's words, 'sparkles'.
With respect to youth and beauty, her daughter V states that just as C has never seen herself as a mother, she has never seen herself getting old. Upon being diagnosed with breast cancer in December 2014 when aged forty-nine V relates that C expressed the view that she was "actually kind of glad because the timing was right". It is recorded in C's medical notes that she did not want to discuss the benefits and risks associated with chemotherapy but was " keen not to have any change in size or deficit that will affect her wearing a bikini". She refused to take medication prescribed for the disease because "it made her fat". There appear to have been no concerns expressed regarding C's capacity in this context.
C's preoccupation with not getting old also manifested itself in other ways. Upon learning that her daughter G was pregnant C's reaction was, says G, one of anger in circumstances where this meant she would be a grandmother and made her feel "past her sell-by date". Within the foregoing context, in her statement V relates that C has often said over the years that she wanted to "go out with a bang" and has been firm in her conviction that, with regard to growing old, she "just would not let it happen".
C's emphasis on money, material possessions and 'living the high life' is also well established by the evidence in this case. From the history of her four marriages provided by V it would appear that C has, over the course of those four marriages, considered a downturn in the financial fortunes of her husbands an entirely reasonable ground for moving on and has taken requests that her spending be curtailed or limited to be unreasonable. The value that C places on wealth and possessions is further demonstrated by her statement to V that, her fortunes having suffered a downturn in recent times, she does not want to "live in a council flat" or to "be poor".
Despite her patent faults C is dear to her daughters. V relates that she and G have learnt to accept their mother for who she is: complexities, seeming contradictions, blind spots, self-centred and manipulative behaviour, excruciating honesty and all. V tells me that she has accepted that there is no point in trying to make C a 'typical mother' in the same way she could not have been a 'traditional wife' to her four husbands. She is who she is says V and summarises the position as follows:
"My mother's values, and the choices that she made have always been based on looks (hers and other people's), money, and living (at all costs) what she called her " sparkly" lifestyle…her life was, from her point of view, a life well lived. I have never known her express regret, or really to take responsibility for anything, including the choices she has made".
Over the past year the progress of C's life has, sadly, followed a trajectory that has moved away from what she terms her "sparkly" lifestyle. As I have already noted, C was diagnosed with breast cancer in December 2014. She underwent a lumpectomy in January 2015 and radiotherapy in March 2015, with treatment concluding in May 2015. C has said that, understandably, this placed her under some stress. In August 2015 C experienced the acrimonious breakdown of a long term relationship. This also resulted in the loss of her business and the financial security attendant thereon, the loss of her home and the generation of significant debt. C was also the subject of arrest and criminal charges arising from an incident that occurred during the breakdown of her relationship. This situation is described in the report of Dr R as exposing C to 'back to back psycho-social stressors'.
On 7 September 2015 C attended V's house and asked where her Veuve Clicquot was. Later that day C attempted to commit suicide. The attempt was premeditated and planned. C went to a beach and took sixty paracetamol tablets with champagne. The attempt was not successful (C later told her daughters that she "royally cocked it up"). When C awoke she became worried about the pain that she might suffer and called her general practitioner who advised her to call an ambulance. She was...
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