Medical Treatment: Decisions and the Law
The Mental Capacity Act in Action
Second Edition
Edited by Christopher Johnston
Written by a team of authors at 3 Serjeants' Inn: Robert Francis QC, James Berry, Bridget Dolan, Christopher Johnston, Nicholas Mullany, Michael Mylonas, Fiona Paterson, Richard Partridge, Edward Pleeth, Debra Powell, Sarah Simcock, Amy Street, Claire Watson, Oliver Williamson and Leanne Woods.
December 2009, ISBN 9781845924249
This is the companion website for Medical Treatment: Decisions and the Law.
For further details about the book see below.
Online Editor: Amy Street
Assistant: Edward Pleeth
This site provides (1) updating material as it becomes available and (2) hyperlinks to website addresses given in the book (this aspect is currently under construction). The material is organised according to the book's chapter headings, giving relevant paragraph references where possible. Click on the chapter headings on the left-hand side to access the material relevant to each chapter. All material is also available below.
Click on the other links to the left to view the rest of the 3 Serjeants' Inn chambers website.
Please email mtdl@3serjeantsinn.com with any comments or suggestions for the updating material.
Headline updates
Update to Chapter 6 (Restraint and Deprivation of Liberty)
Paragraph 6.9 [Restraint authorised under the MCA]
26/05/10: Court of Protection case declaring restraint in incapable patient's best interests
The case of DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam) concerned a 55 year old woman (PS) who had uterine cancer and lacked capacity to decide about her medical treatment. Sir Nicholas Wall, President of the Court of Protection, found that it was in her best interests to undergo an operation to treat the condition. The President stated further at paragraph 19: "I am further satisfied, given her hospital and needle phobia, that it may well be necessary to sedate PS in order to convey her to hospital, and that the risks of sedation in these circumstances have been appropriately addressed by the Trust. The need for such sedative treatment will only arise if persuasion fails, and I am accordingly satisfied that it is necessary for the trust to authorise such treatment as being in PS's best interests, and to use force if necessary to sedate her and convey her to hospital."
Link to judgment: http://www.bailii.org/ew/cases/EWHC/Fam/2010/1217.html
Update to Chapter 5 (Going to court)
Paragraph 5.23 [The court's power to make medical treatment decisions]
and
Update to Chapter 6 (Restraint and Deprivation of liberty) generally
01/04/10: Second Court of Protection case declaring breach of human rights - wide-ranging judgment on deprivation of liberty and other issues
In G v E v A Local Authority v F [2010] EWHC 621 (Fam), handed down on 26/03/10, and subsequently published in anonymised form, Mr Justice Baker gave a wide-ranging judgment following an interim hearing in a welfare case. A local authority had removed E, a 19 year old man with a severe learning disability from his adult placement carer, F, without giving any or any adequate consideration to his family life and without a Court of Protection application or authorisation under the Deprivation of Liberty Safeguards. Mr Justice Baker addressed the following points of wider interest:
- He made declarations that Articles 5 and 8 had been breached.
- He addressed issues concerning interim authorisation by the court of a deprivation of liberty.
- He heard argument on the admissibility of statements made by an incompetent person. He agreed with and endorsed the analysis of McFarlane J in Re SA (see below) as amplified by the Official Solicitor in argument.
- He was asked to consider issues relating P's tenancy agreement, given that he had no capacity to enter into it; and issues relating to whether his supported living arrangements should properly be described as a "care home" under the Deprivation of Liberty Safeguards and the Care Standards Act 2000, but made no findings on these points at this interim stage of the proceedings.
Amy Street represented the Official Solicitor as E's litigation friend.
Link to judgment: http://www.bailii.org/ew/cases/EWHC/Fam/2010/621.html
Update to Chapter 5 (Going to court)
Paragraph 5.23 [The court's power to make medical treatment decisions]
15/03/10: Court of Protection declares breach of human rights
The City of Sunderland v MM (HHJ Moir, 08/03/10) provides an example of the Court of Protection declaring that P's human rights (in this case Article 8) have been breached. The case concerns welfare (contact), rather than medical issues, but is an interesting authority in principle for the development of the jurisdiction of the Court of Protection.
Commentary relating to Chapter 13 (Treatment of suicidal patients)
Paragraphs 13.6-13.15 [concerning Suicide Act 1961 and DPP's interim guidance etc]
04/03/10: 3 Serjeants’ Inn’s commentary on the DPP’s assisted suicide prosecution policy
On 25th February 2010 the DPP published his eagerly awaited policy in relation to the prosecution of those who assist the suicide of another:
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html
It lists 22 individual ‘public interest’ factors - 16 in favour of prosecution and 6 against. Those features against prosecution include actions arising wholly out of compassion; a minor involvement in the cause of the suicide; evidence that the suspect sought to dissuade the person from suicide; subsequent reporting to the police and full co-operation thereafter.
Predictably those factors favouring prosecution focus on the relationship between the parties; the age and capacity for understanding of the person committing suicide; whether or not the suspect had other motives for assisting (not wholly out of compassion); and the degree of the suspects involvement in the death.
The publication of such guidelines has attracted criticisms that the law is being altered without the involvement of Parliament and that it is unprecedented for the CPS to set out in detail how people can commit a crime without being charged. However, the guidelines do not suggest that the attitude to assisted suicide is being relaxed.
In fact one can envisage more prosecutions not fewer. Certainly they provide clear warning signs to the medical profession. Whilst it may be true that in most cases members of the medical profession would act wholly out of compassion their position of influence and likely close association with the death of any patient (friend or family member) mark them out as vulnerable to prosecution under these guidelines.
This field will continue to develop - along with ‘mercy killings’ - and one can expect controversial prosecutions and calls for legislative intervention.
Richard Partridge
Update to Chapter 13 (Treatment of suicidal patients)
Paragraphs 13.6-13.15 [concerning Suicide Act 1961 and DPP's interim guidance etc]
01/03/10: Director of Public Prosecution's final guidance on assisted suicide published
"Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide" came into effect on 25/02/10 and supersedes the interim police issued on 23/09/10:
http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html
Update to Chapter 5 (Going to Court)
16/02/10: Court of Protection (High Court level - McFarlane J) consideration of matters of procedure and law:
- hearsay evidence - in general and from incompetent witnesses
- police interviews of P - approach to capacity; whether need to inform court and parties; disclosure of "Achieving Best Evidence" interview
London Borough of Enfield v (1) SA (by OS as Litigation Friend) (2) FA (3) KA
[2010] EWHC 196 (Admin), 09/02/10
Update to Chapter 13 (Treatment of suicidal patients)
Paragraphs 13.6-13.15 [concerning Suicide Act 1961 and DPP's interim guidance etc]
01/02/10: Terry Pratchett's call for assisted suicide "tribunals" follows two contrasting criminal trials
Author and early-onset Alzeihmer's sufferer Terry Pratchett delivers the 34th annual Richard Dimbleby lecture, "Shaking Hands with Death", on 01/02/10 at 22.35 on BBC1. Link to programme details:
http://www.bbc.co.uk/programmes/b00qmfgn
Panorama, "I helped my daughter die", broadcast earlier in the evening at 2030, features Kay Gilderdale, who was acquitted on 25/01/10 of murdering her daughter Lynn, who suffered from ME. Kay Gilderdale admitted aiding and abetting Lynn's suicide and was given a 12 month conditional discharge. Link to programme details:
http://www.bbc.co.uk/programmes/b00qs930
BBC news, "ME mother Kay Gilderdale backs suicide law calls": http://news.bbc.co.uk/1/hi/uk/8490869.stm
On 26/01/10 the Director of Public Prosecutions issued a statement defending the decision to prosecute Kay Gilderdale:
http://www.cps.gov.uk/news/press_statements/questions_about_kay_gilderdale_decision/
Kay Gilderdale's case contrasts with that of Frances Inglis, who on 20/01/10 was convicted of murdering her brain-damaged son Thomas by injecting him with heroin. She had said during the trial, "I did it with love in my heart, for Tom, so I don't see it as murder."
BBC news, "Mother gets life for heroin death": http://news.bbc.co.uk/1/hi/england/8470572.stm
Update to Chapter 3 (Deciding for Others - Adults)
Paragraph 3.13 - Determination of best interests
21/07/09: Observations of Court of Protection Senior Judge on the duty to consult under s4(7)(b) Mental Capacity Act 2005
In the context of a decision about an Enduring Power of Attorney, the Senior Judge made the following point of general application:
'The first line of section 4(7) provides that any best interests decision-maker 'must take into account, if it is practicable and appropriate to consult them, the views of' various categories of individuals. In my judgment, where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P's best interests, and it would be neither practicable nor appropriate to embark on that process in the first place.'
www.publicguardian.gov.uk/docs/allen.pdf
Added 18/12/09
Updates to Chapters:
Chapter 1: Consent - General
Chapter 2: Consent - Adults
Chapter 3: Deciding for Others - Adults
Chapter 4: Deciding for Others - Children
Chapter 5: Going to Court
Chapter 6: Restraint and Deprivation of Liberty
Chapter 7: Sterilisation
Chapter 8: Abortion
Chapter 9: Managing Pregnancies
Chapter 10: Feeding
Chapter 11: Religious Objections to Treatment
Chapter 12: Permanent Vegetative State
Chapter 13: Treatment of Suicidal Patients
Chapter 14: The End of Life
Chapter 15: Human Organ and Tissue Donation
Medical Treatment: Decisions and the Law
The Mental Capacity Act in Action
Published by Bloomsbury Professional
“[This book] is very strongly recommended… I also suggest that it should take its place on the shelves of those who are involved less directly with medical law. We would all benefit from authoritative instruction as to what will be expected on the courtroom floor rather than in the academic classroom.” Professor J K Mason, University of Edinburgh, SCOLAG Journal 2003 (review of previous edition)
Medical Treatment: Decisions and the Law is a practical guide written by lawyers involved in treatment decisions on a weekly basis. This second edition will prove invaluable for lawyers, medical professionals, NHS bodies, local authorities, patients, their families and all others involved in their care.
Since Medical Treatment: Decisions and the Law was first published in 2001, the law has changed dramatically. This fully revised second edition explains the provisions of the Mental Capacity Act 2005 and the increased influence of the Human Rights Act 1998. New chapters extensively review the procedural regimes in the Court of Protection as well as in the High Court and under the Article 5 ECHR ‘Deprivation of Liberty Safeguards’. All of the recent key cases are considered, including the life and death cases of Burke, Pretty, Purdy, Wyatt and Baby RB.
Medical Treatment: Decisions and the Law provides a compendious guide to the general principles for treatment decisions (including ‘living wills’) and the approach should a treatment dilemma reach court. Fully updated specialist chapters then address the particular problems the authors have dealt with in the High Court and Court of Protection including cases involving sterilisation, abortion, caesarean sections, feeding, religious objections to treatment, permanent vegetative state and suicide. New chapters consider end of life decisions and human tissue and organ donation. Extensive appendices set out the key precedents, materials and sample forms.
Christopher Johnston, the editor, has acted for patients and hospitals in medical ethics cases over the last 15 years. He appeared in Re M & Re H (Bland decision compatible with Human Rights Act); B v Croydon HA (forcefeeding under Mental Health Act); and Orange (duty to protect prisoners from suicide).
3 Serjeants’ Inn has provided a team of specialist authors. Barristers in this leading medical law chambers have been involved in the most important medical treatment decisions including In Re F (sterilisation), Bland, Re MB (caesarean section), Re A (conjoined twins), Burke (withdrawal of nutrition and hydration), Wyatt and Baby RB.