The ‘process of dying’: update to main text para 15.25, fn2, page 473

NICE guidance (2017) covering the ‘Care of dying adults in the last days of life’ bit.ly/2obBMrl identifies four key elements:

  • ‘Adults who have signs and symptoms that suggest they may be in the last days of life are monitored for further changes to help determine if they are nearing death, stabilising or recovering.’
  • ‘Adults in the last days of life, and the people important to them, are given opportunities to discuss, develop and review an individualised care plan.’
  • ‘Adults in the last days of life who are likely to need symptom control are prescribed anticipatory medicines with individualised indications for use, dosage and route of administration.
  • ‘Adults in the last days of life have their hydration status assessed daily, and have a discussion about the risks and benefits of hydration options’

Best interests: the medical issues; update to main text para 3.26, page 80

A doctor cannot be compelled to treat someone.[17] A court can only consent to treatment to which the patient themselves could have consented.  Subject to an administrative court challenge,[18] the court cannot compel a Trust to offer a different treatment to a patient, even if the court concludes such a treatment would be the best option for the patient. The Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [19] stated that:

Update to para 6.129, page 221: Conclusion and Future Legislation

The Law Commission published its final Report on Mental Capacity and Deprivation of Liberty on 13 March 2017, along with a draft Bill. The full report is available here and a summary of the Law Commission’s conclusions are set out below. As anticipated, the Law Commission focus was on creating a more workable process, whilst placing P at the heart of decision making.

Update to main text para 13.11, page 399: Withdrawal of treatment in MCS        

Abertawe Bro Morgannwg University Local Health Board v RY & CP [016] EWHC 3256 (Fam)

Decided only months after Briggs and Baker J’s Oxford speech (see main text at para 13.13.), this unsuccessful application for withdrawal of life-sustaining treatment (namely, deep suctioning to keep patent a tracheostomy tube and thus RY’s air way) is the near mirror image of Briggs in factual terms. It is also a salutary illustration of the almost unique challenge MCS poses to those evaluating the burdens and benefits of life-sustaining treatment, given our very limited understanding of the life experienced by a patient in a prolonged disorder of consciousness.

Update to para 2.5, page 33

New footnote 6:

White v Philips [2017] EWHC 386 (Ch)

The legal test as to testamentary capacity is a common law one and the classic statement of the test, being found in Banks v Goodfellow (1870) LR5 QB 549, is almost 150 years old. Since judicial application of the test occurs in contested, adversarial proceedings, the evidential burden of proof and the manner in which it shifts are significant and were live issues in this case. All of these distinguishing factors combine to make this fascinating decision of HHJ Saffman of academic interest to those concerned with the application of sections 1, 2 and 3 of the MCA 2005 to medical treatment decisions in the Court of Protection. That said, it is interesting to observe some of the similarities. In particular, one notes the requirement of causation and the implicit acknowledgement in 1870 that one might suffer a delusion of the mind and still retain the issue specific capacity to give instructions for and execute a will. Thus the 1870 test demands that the testator not only: i) understands the nature and effect of his act in making a will, ii) understands and recollects the extent of his property and iii) understands the nature and extent of the claims on him of those he is including and excluding but also iv) is not subject to any disorder of the mind as shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” As HHJ Saffman said in his exposition of the law, “It is a question of fact whether the delusion affects the disposition or the failure to make one and one must bear in mind that the existence of a delusion is quite compatible with the retention of the general powers and faculties of the mind.” After meticulous analysis of the lay and expert psychiatric evidence, the Judge found that whilst he did “not doubt that at times Mr. White, by virtue of the drugs with which he had been prescribed, suffered from opiate toxicity to a greater or lesser extent ” any disorder of his mind did not influence him in the distribution of his estate and that all four elements of the test were established by the defendant.

Update on Thefaut v Johnson, para 1.26, page 18

In Spencer v Hillingdon Hospital NHS Trust[1] it was determined that the Montgomery approach to informed consent was simply a variant of Bolam and that the test was: would the ‘ordinary sensible patient’ feel justifiably aggrieved at not being provided with the information in issue. In Thefaut v Johnson[2] Green J (correctly in the authors’ view) rejected that approach, indicating that it failed to give sufficient weight to the subjective – and patient-centric – approach required by the Supreme Court in Montgomery.[3] 

The judge adopted a helpful rubric by, first, reaching a prima facie determination on the materiality of the information by considering the position from a predominantly objective standpoint, that is would a reasonable patient with the patient’s condition deem the risk material.

Secondly (and importantly) he then went on to consider the matter applying a more subjective criteria to test that prima facie position to ensure that meaning was given to the second limb of the Supreme Court’s materiality test in Montgomery namely ‘the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to’ the risk.

On the facts of Thefaut Green J found both limbs were satisfied: the key determinations were that there was a 1% and not 0.1% risk of nerve damage and that there was in fact a 50% risk that the surgery would not eradicate or significantly mitigate the claimant’s back condition (when she had been told there was a significantly higher chance of this happening).  Green J stressed that it was important to place the advice about the risks and benefits of surgery into the context of the advice given as to recovery absent the procedure – a recovery which would probably have occurred within a year: