The case considered the interplay between the Mental Capacity Act, Code of Practice and Articles 3 (torture or inhuman or degrading treatment or punishment) and Article 8 (right to private and family life and no interference by a public authority in the exercise of that right except in accordance with the law and is necessary in a democratic society and amongst other things protection of health of others). Also considered was established case law of Bland  AC 789 at paragraphs 863-865, Cheshire West  UKSC 19, Aintree University Hospital Trust v James  UKSC 67 and Code of Practice 5.29-5.36, in particular paragraph 5.31 (all reasonable steps which are in the person's best interests should be taken to prolong their life).
Reporting Restrictions Orders
Whilst the Trust and the Official Solicitor sought a Reporting Restrictions Order in relation to the identification of AB and the name of the treating hospitals, the court, having heard representations by the Press Association questioning why the trust should not be named, decided there were no compelling reasons why it shouldn’t be. An Article 8 and 10 balancing exercise was conducted and the court decided that neither AB nor the treating hospitals should be named but this did not apply to the hospital Trust. An embargo on the press and broadcast media was made from reporting the fact of the application and the outcome until no more than 72 hours after the operation had been performed.
AB had attended her GP who noted that AB had a “mixed diabetic ulcer – foot” on 14 December 2014, had then attended A & E at hospital on 3 January 2015 following an accident on Christmas Day with scalds on both feet from boiling water but had refused to allow the wounds on the feet to be treated. AB again attended the hospital A & E department following a fall and was admitted as she had sustained several rib fractures and a fracture of the right humerous. Bilateral leg wounds were noted and antibiotics prescribed. However on 22 January AB self -discharged from hospital and following a further readmission on 3 March when AB was discharged home the same day with high blood sugars, the hospital contacted AB’s general practitioner in respect of a mental capacity assessment being undertaken. AB was to be admitted to hospital on 30 April having been referred by the GP with a left heel ulcer but AB left hospital before a bed could be found and by May, having been referred by the podiatry clinic, a large heel ulcer was noted probing to the bone. AB was admitted for the administration of intravenous antibiotics but self -discharged against medical advice. A senior community psychiatric nurse assessed AB on 11 May as lacking capacity to make decisions about medical treatment. By 18 May AB re-attended A & E and it was noted that AB had a new necrotic inflamed left foot and was admitted under the care of orthopaedic surgeons. At this point a request was made for vascular and psychiatric advice as the orthopaedic surgeon was of the view that an amputation was required but AB was adamant that she did not want her leg to be amputated.
A consultant psychiatrist Dr B provided the opinion that AB was suffering from a moderately severe depressive episode and she was able to understand information about the proposed treatment (i.e. amputation) and was able to retain this information but was unable to weigh the advantages and disadvantages of the treatment. AB lacked the capacity to make decisions about medical care and treatment and he recommended the commencement of a course of psychotropic medication.
Unfortunately AB’s health continued to deteriorate – AB was not cooperative with clinicians and nursing staff and refused to take insulin. However on 16 June, for the first and only time, AB agreed to the leg being amputated but this agreement and insight lasted just 10 minutes - since that time AB has consistently said that she could treat herself and was opposed her leg being amputated. From 18 June AB continued to deteriorate in health. On 1 July a best interest meeting was held and all agreed that AB required an urgent above the knee amputation of the left leg. However the independent mental capacity advocate (IMCA) concluded that the options of amputation or death would have far-reaching consequences for AB. If AB underwent an amputation she would be wheelchair and/or bedbound for the rest of her life and the IMCA was concerned about the impact on AB’s mental health. The IMCA considered that the best interest decision should be made by the Court of Protection. By 21 July Dr B noted that AB’s physical state was deteriorating with episodes of altered consciousness and AB was not responding to verbal stimuli. The case came before Mr Justice Keehan on 21 July 2015.
Having applied MCA 2005, sections 1, 2, 3, 4, 15 and 16 together with the Code of Practice and the case law from Bland, Cheshire West, Aintree and Re A, and the court having heard evidence of an independently appointed consultant psychiatrist and consultant vascular surgeon, they concluded that on the basis of the agreed psychiatric evidence AB suffers from a predominant persecutory delusional state which is persistent in nature and due to her age means a response to treatment is not favourable. They also concluded that AB lacks capacity to make a decision about the medical treatment and surgery. The court found that she does not accept and does not understand that, absent the proposed surgery, she will die. In the absence of such understanding and acceptance, resulting from her delusional disorder, she is wholly incapable of making a decision about her medical treatment and surgery. The court was satisfied that there was no prospect of AB gaining capacity in the very short timeframe in which the decision has to be made i.e. in the next month or so, and that it was in AB’s best interest to give permission for the above the knee amputation of AB’s left leg to be undertaken together with the use of reasonable restraint before, during and subsequent to surgery as necessary to safeguard and protect AB, including sedation. The court authorised the deprivation of AB’s liberty in so far as it is necessary to perform the procedure. The court conducted the balancing exercise of the advantages and disadvantages of proposed surgery as set out in paragraph 59 (the disadvantages paragraph a) to d) and advantages paragraphs e) to h)).
This case clearly shows how, where a person lacks capacity, life changing decisions can be made by the Court of Protection on their behalf. Clearly for the court these are not easy decisions to make and in this particular case the evidence showed that it was plain that if AB did not undergo the above knee allocation AB would die. The preservation and sanctity of life resonates in this decision and it comes at a time where there is now widespread discussion about autonomy of an individual and their ability to make decisions about their treatment and potentially ending their own lives. The clear difference here of course is that AB was found not to have capacity to make such a decision. The appropriate use of independent experts to advise the court making this fundamental decision on behalf of incapacitated person may possibly form a blueprint for the wider discussion about the capacitated person’s right to die. Parliament is yet to fully debate this issue and it will be interesting to see how case law through the Court of Protection develops.
Read the full text of the judgment on Bailii