There is a case reported in the Telegraph today which I found interesting in relation to my work with the Mental Capacity Act – a generally very positive piece of legislation that has affected so many aspects of the way we work.
It is interesting partly because of the rarity of public judgements under the Mental Capacity Act (2005) so anything that comes up tends to be jumped on by practitioners as there is still a lot of vagueness that could do with some legal clarification.
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The case talks about a 55 year old woman with learning disabilities who suffers from cancer. She is afraid of hospitals and has consistently refused hospital check ups and treatment due to this fear. Initially she agreed to surgery however her fear of hospitals and needles led her to miss appointments and refuse ongoing treatment. Sir Nicholas Wall, the President of the Family Division agreed with the application by surgeons to operate in his role as presiding over the Court of Protection.
It seems to have been established that the patient did not have the understanding of the impact of her refusal to access treatment and therefore the process of assessing capacity and the judgement that she lacked capacity to make a formal consent were clearly established.
The decision to sedate her in order to admit her to hospital and to carry out what will amount to major surgery without consent is obviously so drastic that the bounds of the Mental Capacity Act were being tested and quite rightly the case was brought directly to the Court of Protection to judge.
It is a balancing act that should be subject to external scrutiny beyond medical professionals necessarily and obviously not being party to all the details, it can be easy to draw conclusions.
From an academic and professional point of view, it is interesting in the way that the Court of Protection has been used to make a judgement relating to health and welfare, rather than strictly financial matters as had been the case prior to the new legislation. The discussion about ethics and the morality of forcing surgery on someone who lacks capacity to consent is also healthy in the sense that although the decision has been made to go ahead with the surgery, the discussion allows the consideration of her position and human rights along the process rather than simply allowing a dramatic decision to be made on ‘common law’ principles.
Sir Nicholas stated that he released the judgement to assist with other decisions that might be made in hospital up and down the country. I suspect that when there is a need to sedate someone and remove them to hospital, it would still be necessary to go to the Court of Protection for clarification but it allows us to see what some of the thinking behind the decisions would be.
There are, of course, implications that run through A&E departments constantly. There is a difference too, between planned surgery and an action taken in an emergency to prevent the loss of life. Perhaps the real story to take with us is that if we have firm ideas about our wishes for treatment or the lack of it, an advance directive is the safest way to go.