2013 03 Incapacity

Monday 1 April 2013

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NT v FS (by his litigation friend, the Official Solicitor) & Ors[2013] EWHC (COP), HHJ Behrens: The court determined the provisions of a will to be executed for FS, who lacked capacity to manage his financial affairs, on the application of his deputy, exercising powers under ss 16 and 18(1)(i) Mental Capacity Act 2005. The decision was to be made on the basis of what was in FS's best interests which was not the same as inquiring what he would have decided if he had had capacity and must follow the structured decision making process in the Act. There was no hierarchy between the various factors that must be borne in mind although in a particular case one or more factors might be of "magnetic importance" in influencing the outcome. FS's invalid will of 1986 was not such a factor. The judgment contains a discussion of authorities on the weight to be attached to a person's wishes and feelings and follows Re M [2011] 1 WLR 344, paragraphs 34 and 35: the weight to be attached will always be case-specific and fact-specific but in some cases they may carry much and even on occasions preponderant weight, and in others, very little weight. The authorities express differing views as to the relevance of the person being remembered for having "done the right thing". No weight would be placed on that factor in this case. Click here for the judgment.

The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2013, SI No.506 come into force on 1 April 2013, to amend the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, changing the prescribed period to elapse before the Public Guardian may register a Lasting Power of Attorney and the periods in which objections to the registration may be lodged; also, providing a new basis for discharging a security provided by a court appointed deputy. See the regulations here.

Aintree University Hospitals NHS Foundation Trust v David James (by his litigation friend the Official Solicitor), May James and Julie James [2013] EWCA Civ 65, Laws LJ, Arden LJ and Rt. Hon. Sir Alan Ward: on 6 December 2012, Jackson J had found that DJ lacked capacity to litigate and to make decisions concerning his medical treatment (see December 2012 update). He declined to make the order sought by the hospital for treatment to be withheld or for a “Do Not Attempt Resuscitation” to be placed on DJ’s medical records. The hospital sought permission to appeal at an urgent hearing. On 21 December 2012, the Court of Appeal allowed the appeal and made the declarations sought. DJ died on 31 December 2012. The judgment was handed down on 1 March 2013. DJ was 68 years old when he died. In May 2012 he had been admitted to hospital and had been on the Critical Care Unit from 27 May 2012 until he died. 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 evidence of his recent enjoyment of the company of his family and responsiveness to family members and nursing staff. His wife and daughter opposed the hospital’s application. They believed that he might recover so as to be able to return to home and that the family would know when the time had come for resuscitative treatment to cease. The Court of Appeal considered the first-instance Judge’s decision that treatments could not be said to be futile. Giving the leading judgment, Sir Alan Ward held that life-sustaining treatment could have one of six goals. The Judge had been wrong to focus on the past successful effect of the treatment without also having regard to the improvement, or lack of improvement, that such treatment would bring to the general health of the patient. He was wrong to have been concerned with whether the treatment was worthwhile in the interests of the general well-being and overall health of the patient. The Judge had also been wrong when, having found that CPR would be unlikely to be in DJ’s best interests if there were another crisis, he still refused the application. Considering what should happen in that emergency was the decision that he was being called upon to make. Having allowed the appeal, the Court of Appeal concluded that treatment would be futile, overly burdensome and there would be no prospect of recovery. That was just one pointer to where DJ’s best interests lay. The Court had to take into account DJ’s past and present wishes and feelings so far as ascertainable, the views of those caring for him as to what would be in his best interests and what they considered to be his real wishes and feelings. The Court found that his wishes, if they were the product of full informed thought, would have been to recognise the futility of treatment, that treatment would be extremely burdensome and he would never recover enough to go home. A declaration that it would be in his best interest to withhold treatment was granted. Click here for the judgment.

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