A recent Court of Protection decision highlights how important it is to take an individual’s wishes and feelings into account when making decisions about their medical treatment.
The court considered the case of a 73-year-old man, known as Mr B, who had suffered from mental health problems for a number of years having developed paranoid schizophrenia in his mid-20’s. At the heart of this case was a decision about an incurable foot ulcer which Mr B had developed due to diabetes. Despite their best efforts, doctors could not cure the ulcer and recommended Mr B’s foot be amputated.
Wye Valley NHS Trust applied to the Court of Protection asking permission to amputate Mr B’s foot, even though he was strongly opposed to this. Doctors argued that, without the operation, Mr B could die within days but, if they were able to proceed with amputation, Mr B could live for several years more.
The court agreed that Mr B lacked capacity to make informed decisions about his medical treatment.
Whenever there is a dispute about medical treatment or care for someone lacking capacity, the court must always make a decision, based upon what is in that person’s best interests with reference to the Mental Capacity Act 2005 and associated Code of Practice.
In this case, the court needed to weigh up the personal wishes of Mr B against the professional opinion of doctors who said he would die quickly without a foot amputation.
The court decided that, despite medical evidence to the contrary, an “enforced amputation” was not in Mr B’s best interests because he was so strongly opposed to it.
In a considered judgement, Mr Justice Parker reminded us that a conclusion that a person lacks capacity is not an “off-switch” for their rights and freedoms and that, “the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else.”
The Judge said, "I am quite sure that it would not be in (his) best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite."
"There is a difference between fighting on someone's behalf and fighting them. Enforcing treatment in this case would surely be the latter."
He went on to say that, in cases where a patient lacks capacity, it was of "great importance" to give "proper weight" to their wishes and feelings.
This is a very sad case, but an example of how the Court of Protection works – taking a very human and balanced approach to very sensitive issues, driven by best interests, and always conscious of the circumstances and wishes of the person whose best interests are being considered.
Liz Perry is a solicitor in Slater and Gordon’s Court of Protection team.