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.

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] 

Update to para 5.12, page 132: Introduction to the Official Solicitor
para 5.26, page 147: Litigation Friend
para 5.58, page 170: The High Court’s inherent jurisdiction in relation to vulnerable adults
Appendix 5.7 

The Official Solicitor has issued a new and amplified Practice Direction - Appointment In Family Proceedings And Proceedings Under The Inherent Jurisdiction In Relation To Adults, January 2017: http://bit.ly/2lYHJ8O.
This replaces the Practice Direction issued in March 2013, set out at Appendix 5.7.

Update to para 6.1, page 174: General

R (ota Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 addresses the tangled issue of what actually constitutes a deprivation of liberty. It is a further retreat by the judiciary from the far-reaching implications of Cheshire West.