Update to main text para 13.1, page 376: Introduction

There have been significant developments in this area in recent months.

The most important is Briggs: a policeman and Gulf War veteran, injured in a traffic accident, remained in a minimally conscious state; his wife brought an application seeking withdrawal of clinically assisted artificial nutrition and hydration. Charles J’s first judgment[1] held that Mrs Briggs was entitled to bring her application for withdrawal under s21A of the Mental Capacity Act 2005. This conclusion may have far reaching consequences for both s21A applications and serious medical treatment cases where a standard authorisation is in place. The judgment is currently under appeal, and dealt with in an update on chapter 5. In the later substantive judgment[2], Charles J granted Mrs Briggs’ application, applying the best interest test to conclude that had Mr Briggs been able to decide the matter for himself, he would not have consented to receive continued treatment by clinically assisted artificial nutrition and hydration.

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.

Update to main text para 1.25 fn3, page 18: 

For guidance on consent see the Royal College of Surgeons’ Consent: Supported Decision-Making – a good practice guide: which notes:

‘The surgeon discussing treatment with the patient should be suitably trained and qualified to provide the treatment in question and have sufficient knowledge of the associated risks and complications, as well as any alternative treatments available for the patient’s condition’

Update to main text para 13.13¸ page 406

In his Oxford speech[1], Baker J contrasted diagnosis of brainstem activity, which can be done with neurological testing, with the extreme difficulty of diagnosing a patient’s level of consciousness, commenting:

‘The principal potential weakness is that there are no definitive criteria of awareness so that such assessments depend on judgment and interpretation which may be challenging even for the professionals experienced in carrying out the assessments. Furthermore, differences may arise between the observations professionals carrying out assessments and those of family members who, while they may lack the objectivity which the professional possesses, have spent far more time with the patient and have greater experience of interpreting their behaviour.’

Update to main text para 13.10, page 397

There has been some debate[1] as to the position where the provision of clinically assisted artificial nutrition and hydration is clearly covered by a valid and applicable advance decision to refuse treatment or has been properly delegated by a Lasting Power of Attorney[2].