2013 11 Incapacity

Sunday 1 December 2013

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Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 (Lord Neuberger, Lady Hale, Lords Clarke, Carnwath and Hughes): Mr J was a patient on the hospital’s critical care unit, on a ventilator and considered to lack capacity to make decisions about his medical treatment. He appeared to be able to recognise and take pleasure in visits from family and friends. The Trust issued proceedings in the Court of Protection for declarations that it would be his interests for specified treatments to be withheld if his condition deterioration. The family opposed the application, saying that while he would never regain his previous quality of life, he gained pleasure from his present quality of life and would wish it to continue. The MCA Code of Practice provides for withholding of life-sustaining treatment where it is futile, overly burdensome to the patient or where there is no prospect of recovery. The trial Judge refused to make the declarations sought, holding that those words did not apply to treatments which would enable the patient to resume a quality of life which he would regard as worthwhile, whilst not restoring him to full health. The Court of Appeal reversed that decision and granted the declarations, holding that futility was to be judged by the improvement or lack of improvement which the treatment would bring to general health of the patient and that “recovery” meant recovery to a state of health which would avert the looming prospect of death. Mr James suffered a heart attack and died ten days later. His widow was given permission to appeal so that the SC could consider the approach to be taken in the courts to the assessment of a patient’s best interests. It held that the trial judge applied the right principles. However, the Court of Appeal had also made the right decision on the basis of fresh evidence. Technically the appeal was dismissed. Lady Hale gave the sole judgment. She said that the fundamental question was whether it is in the patient’s best interests to give the treatment, not whether it is lawful to withhold it. The starting point was a strong presumption that it is in a person’s best interests to stay alive. That means considering his welfare in the widest sense, social and psychological, as well as medical. The nature and likely outcome of the treatment must be considered: what it involves and its prospects of success. Decision-makers must try to place themselves in the place of the individual patient and ask what his attitude would be likely to be and must consult others who are looking after him or interested in his welfare. The Judge had been right in his approaching of considering whether the proposed treatment would be futile, to weigh the burdens of treatment against the benefits of a continuous existence, to give great weight to Mr James’ family life, and to be cautious in circumstances which were fluctuating. A treatment may bring some benefit to a patient even if it is has no effect on the underlying medial condition. Treatment is not futile if it enables a patient to resume a quality of life, which he would regard as worthwhile. The Court of Appeal had been wrong to suggest that the test of a patient’s wishes and feelings was an objective one. However by the time of the appeal there had been such a significant deterioration in his condition that the time had come when it was no longer in his best interest to provide treatment. Click here for the judgment.

M v The County Council and The Care Commissioning Group (CCG) and A [2013] EWHC 3456 (COP) (Jackson J): M, a 67 year old woman, by her Litigation Friend and Independent Mental Capacity Advocate, challenged under s 21A MCA 2005 the standard authorisation of the deprivation of her liberty in a care home. She had very substantial medical needs including the need to control her diabetes. She had a mild impairment of functioning of mind or brain and lacked capacity to decide where to live. There were 2 available options: staying in the care home or a return home with a standard care package. 24-hour medical care at home was prohibitively expensive and would anyhow be rejected by M. M expressed a hatred of the care home and that she wanted to leave or would take her own life. Applying s 4 MCA 2005, it was held that, whereas a return home meant a risk of deterioration in her physical or mental state which may even be instantly life-threatening, if M remained in the care home she was entitled to ask “What for?”. The right to life and state’s obligation to protect it was not absolute and the court must have regard to the person’s own assessment of their quality of life. In M’s case, there was little to be said for a solution that attempted, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regarded as insupportable. The decision implied no criticism of the CCG. There were risks either way, and it was perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not the parties. The visit by the District Judge to M was commended as an approach that may be of value in other cases of this kind. Click here for the judgment.

The Public Guardian v Lutz & Others [2013] EWHC 2409 (COP) (Senior Judge Denzil Lush): The Public Guardian applied to enforce the security bond of a property and financial affairs deputy, acting under the duty to supervise deputies (s 58(1)(c) MCA 2005). Gifts had been made that totalled £59,375. The deputy applied for retrospective approval. The court referred to Re GM [2013] COPLR 290 for the law on making gifts by deputies, and set out the scope of its jurisdiction in relation to deputies after the death of the person subject to the deputyship. It held that the deputy had exceeded his authority and the security should be enforced. The publication of the judgement would inform the public what happens when deputies misbehave. When a deputy or attorney exceeded their authority they forfeited a right to confidentiality and there was no reason why their identity and conduct should not be made public. Click here for the judgment.

A Local Authority v SY (by her litigation friend the Official Solicitor) [2013] EWHC 3485 (COP) Keehan J: SY was a young woman aged 19 with mild to moderate learning difficulties. She lived in a specialist residential unit where she was well settled and attended a local college. When she was 17 she had met a 23 year old man with whom she had begun a relationship. Three months into the relationship, she had alleged that she was being sexually abused. The local authority had concluded that she lacked capacity to identify that she was being abused or exploited and moved her to emergency accommodation. The man had later arranged for SY to go through a purported Islamic marriage ceremony to him. He was subsequently deported, his various applications to remain in the UK having been refused. The local authority applied for declarations that SY lacked capacity to litigate, to make decisions as to her residence, what contact she should have with others, her care package and about entering into a contract of marriage. Having considered the medical evidence, the Judge was satisfied that SY lacked capacity to make those decisions. He was satisfied that she had the capacity to consent to sexual relations, but not to enter into a marriage contract. He noted that the purported marriage ceremony did not comply with the Marriages Act and was a non-marriage. Relying on XCC v AA & others [2012] EWHC 2183 (COP), he was satisfied that the High Court has an inherent jurisdiction to make a declaration of non-marriage. Considering that the man had known about SY’s learning difficulties and vulnerabilities, that the police and care services were concerned about her and that he was trying to bolster his immigration appeal, he found that the man had deliberately targeted SY. The courts would not tolerate such gross exploitation. It was important for SY to make a declaration that the ceremony she had been involved in with a non-marriage. Click here for the judgment.

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