2012 12 Incapacity

Tuesday 1 January 2013

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J Council v GU (by his litigation friend, the Official Solicitor)(1), J Partnership NHS Foundation Trust (2), Care Quality Commission (3) and X Limited (4) [2012] EWHC 3531 (COP), Mostyn J: the court approved an agreed order containing detailed policies for regulating the highly restrictive regime imposed on a person lacking mental capacity, George, who was deprived of his liberty in a care home under a standard authorisation. The regime included strip-searching and monitoring of his correspondence and of his telephone conversations, which, if implemented in a high security psychiatric hospital, would be subject to detailed procedures and safeguards in legislation. There were no equivalent detailed procedures and safeguards stipulated anywhere for persons detained under the Mental Capacity Act 2005. Without seeking any finding as to past non-compliance, the Official Solicitor raised a doubt as to whether the arrangements for George were compliant with Article 8. The agreed order would put the matter beyond doubt. It contained policies regulating the circumstances in which he could be searched personally or have his room searched, or have his telephone calls or correspondence monitored, with arrangements for review and monitoring by the NHS Trust and CQC. Where there was going to be a long-term restrictive regime accompanied by invasive monitoring of this type, policies of this kind were likely to be necessary to avoid doubts as to Article 8 compliance. This would not be necessary if Parliament, the Executive or the CQC were to make rules or guidance to cover the situation. Also, clarification was given as to correct practice for stating the names of parties on court documents in Court of Protection proceedings. The proceedings are in private and judgments which are to be published should be anonymised. However it did not follow that all court documents should also be anonymised. The practice of doing so was confusing and dehumanizing . The parties’ identities would be restored on the court order. Click here for the judgment.

An NHS Trust v DJ (by his litigation friend, the Official Solicitor)(1), MJ (2) and JJ (3) [2012] EWHC 3524 (COP), Jackson J: the court refused declarations sought by the treating NHS Trust that it was in DJ’s best interests that in the event of his clinical deterioration certain treatments should be withheld and that a “Do Not Attempt Resuscitation” instruction should be placed in his medical notes. There had been longstanding disagreement between DJ’s family and doctors about what treatment should be given. DJ, who was 68 and lacked capacity regarding decisions as to his treatment, had suffered a number of serious medical conditions including a stroke. He was unable to sit up, was dependant on artificial ventilation, had poor kidney function and was at risk of infections and multi-organ failure. He qualified for a diagnosis of minimally conscious state but his level of awareness was more accurately described as very limited. There was recent evidence of his enjoyment of the company of his family and responsiveness to family members and nursing staff. Paragraph 5.31 of the Mental Capacity Act 2005 Code of Practice contained an accurate statement of the approach to assessing best interests, the central question being whether treatment is futile, overly burdensome to the patient or there is no prospect of recovery. The prospect of recovery did not mean recovery to full health but the resumption of a quality of life that DJ would consider worthwhile. DJ had a meaningful family life which carried great weight. It was emphasised that all the court was deciding was that it was not persuaded that withholding of treatment was in DJ’s best interests, not that the treatments must be offered. If there were another crisis, the family and doctors would have to try to reach a common view. The parties should update an agreed statement of facts for use if an emergency application became necessary. Click here for the judgment.

A Local Health Board v J [2012] All ER (D) 146 (Nov), Roderic Wood J: J, a 56 year old woman, had had a cardiac arrest in October 2010 which had resulted in irreversible brain damage. Since then she had received nursing care, artificial nutrition and hydration. She was incapable of independent living. In March 2012 the health board sought declarations that J lacked the capacity to make decisions regarding her medical treatment including decisions regarding the withdrawal of artificial nutrition and hydration, that she was in a permanent vegetative state and had no prospect of recovery, that there were no further investigations or treatment which should be undertaken, that it was in her best interests for nutrition and hydration to be withdrawn, that nutrition and hydration could be withdrawn lawfully and that withdrawal was in her best interests with appropriate nursing care, so as to ensure that she retained the greatest dignity until her life came to end. J’s family and the Official Solicitor, as litigation friend to J, supported the applications. Two doctors gave evidence supporting the diagnosis of permanent vegetative state. A therapy assistant and a student gave evidence that they had recorded that J had verbalised that she wanted to die and had repeated the word “die” or a sound like “die” ten times. The medical evidence was that it is an extremely common and entirely natural and normal human reaction to attribute meaning to sounds, and it would be not be surprising if muttering or groaning sounded like die. The Court found that on the evidence J was in a permanent vegetative state. It was improbable that J was capable of forming a sentence, however simple and her vocalisation had been innocently misinterpreted. Her vocalisation did not indicate a level of awareness consistent with a minimally conscious state; any recovery remained improbable and was extremely unlikely. Existence in a vegetative state with no prospect of recovery is 'not a benefit'. Futility of treatment justifies its termination.The declarations were granted. Click here for a newspaper report.

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