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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015) URL: http://www.bailii.org/ew/cases/EWCOP/2015/60.html Cite as: [2015] EWCOP 60 |
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B e f o r e :
____________________
Wye Valley NHS Trust v B |
Applicant |
|
-and- Mr B (by his litigation friend, the Official Solicitor) |
Respondent |
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David Lock QC instructed by the Official Solicitor for Mr B
Hearing dates: 24 and 25 September 2015
Judgment date: 28 September 2015
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Crown Copyright ©
Mr Justice Peter Jackson:
Introduction
Principles
(1) Every adult 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. Without consent any invasion of the body, however well-meaning or therapeutic, will be a criminal assault.(2) Where there is an issue about 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).
- 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).(3) A person is unable to make a decision for himself if he is unable to understand the information relevant to the decision, to retain, use and weigh that information, and to communicate his decision: s.3(1).
(4) Where a person is unable to make a decision for himself, there is an obligation to act in his best interests: s. 1(5).
(5) Where a decision relates to life-sustaining treatment, the person making the decision must not be motivated by a desire to bring about death: 4(5).
(6) When determining what is in a person's best interests, consideration must be given to all relevant circumstances, to the person's past and present wishes and feelings, to the beliefs and values that would be likely to influence his decision if he had capacity, and to the other factors that he would be likely to consider if he were able to do so: s.4(6).
(7) So far as reasonably practicable, the person must be permitted and encouraged to participate as fully as possible in any decision affecting him: s.4(4).
Article 2: Everyone's right to life shall be protected by lawArticle 3: No one shall be subject to ... inhuman or degrading treatment ...
Article 9: Everyone has the right to freedom of thought, conscience and religion
"The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be."
Discussion
The facts
Medical status
(1) He suffers from persistent and treatment-resistant Schizoaffective Disorder, otherwise known as Bipolar Affective Disorder with Psychotic Symptoms.(2) In consequence, he experiences auditory hallucinations that tell him whether or not to take his medication: "If the Lord says it's no, it's no." Although he did not make a similar connection when speaking about amputation to Dr Glover or to me, he told Ms Chapman that because the Lord doesn't want him to have his leg taken off he is not doing it.
(3) He does not understand the reality of his injury. Asked how things would go if he did not have the operation, he told me that his leg would get better with proper care and if he was allowed to use it.
(4) He also mistrusts the doctors to the extent that he expressed the fear that if they put him to sleep for the operation, they could do anything. He did not seem reassured by my telling him that they would not go beyond treatment that the court permitted.
(5) Whenever anyone speaks to Mr B about treatment for his leg, he becomes agitated and will shut down the conversation so that the pros and cons of the various options cannot be further discussed.
Best interests
(1) Making all the allowances for the fact that some patients confound confident medical predictions, Mr B will shortly die without surgery.(2) His death is avoidable. It would deprive him of a continued existence that may be measured in years.
(3) There is no indication that Mr B's quality of life before he came into hospital in July 2014 was unacceptable to him. He clearly faced many difficulties, but he maintained a stable way of life that contained at least some pleasures.
(4) It is possible that after an operation he would adapt and recover some quality of life.
(1) Mr B opposes it in the strongest possible terms. He has consistently said this over the entire period that amputation has been under discussion, which is now about a year. During my meeting with him, he made these various statements in answer to my 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.All this was said with great seriousness, and in saying it Mr B did not appear to be showing florid psychiatric symptoms or to be unduly affected by toxic infection.(2) If the operation is to be carried out successfully, Mr B will have to be sedated to overcome his resistance and will have to remain sedated for some time afterwards to help him with his inevitable feelings of outrage and distress. His cooperation with rehabilitation will then be required, including a willingness to take his antipsychotic medication and antibiotics, together with whatever other medication is required by a recent amputee.
(3) While the operation would probably be a surgical success, there are always risks associated with surgery in a person of Mr B's age and characteristics.
(4) There is in my view a significant chance that Mr B's mental health and well-being will be further compromised following an operation. Even if he does not suffer some of the risks of amputation (phantom pain etc.), the loss of his foot will be a continual reminder that his wishes were not respected. Further to that, his religious sentiments will undoubtedly continue and he will believe that the amputation was carried out against the Lord's wishes.
(5) There is a possibility, which may not be known until surgery begins, that a below-knee amputation would be inadequate and that Mr B would lose his leg altogether.
(6) Mr B's current quality of life is in his own estimation very poor. When I asked him how things are, he replied "rough". His foot gives him shocking pain when he is turned. He said that he was "suffocating" in hospital. He would have no regrets about missing his next birthday, which is imminent, or Christmas. In contrast, he became emotional about distant personal events that continue to give him sadness.
(7) If surgery is successful, there is no possibility that Mr B can return to the sort of life he led before July 2014. He will never live in his own accommodation again. He has now been in hospital for 15 months and, given his multiple physical and mental difficulties, a discharge date cannot be predicted. 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.
(8) 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.
(9) If Mr B does not have the operation, he will receive palliative care to ensure that his last days are as comfortable as possible for him.
Conclusion