Kings College Hospital NHS Foundation Trust v C & Anor [2015] EWCOP 80

​Whether a person requiring life-saving treatment lacked capacity to consent to have such treatment or not and accordingly whether the court could make orders under the Mental Capacity Act.

The court, guided by the principle that a capacitous individual is entitled to decide whether or not to accept medical treatment even such treatment to be life-saving, such an individual is sovereign over their own body and mind. PH v A Local Authority [2011] EWHC 1704   applied.

The hospital trust sought declarations under section 4A and 15 of the Mental Capacity Act that the trust and its staff be authorised to provide such medical care and treatment to the Patient C as they judge clinically indicated, to prevent C from leaving hospital without agreement and to use necessary and reasonable physical and/or chemical restraint for the purposes of giving effect to the declaration with respect to medical care and treatment.

The court only considered whether C did or did not lack the capacity to make the decision required.

Background
This case has now been widely reported in the press and concerned a woman who was refusing to consent to have dialysis treatment following a pre-planned failed suicide attempt whereby she took 60 paracetamol tablets with champagne. The court heard evidence from three psychiatrists and C’s daughter.

The evidence from the treating clinicians in relation to the requirement of kidney dialysis and overall prognosis varied from uncertain to cautiously optimistic. It was clear however that she would require dialysis of between six weeks to a maximum several months for four hours three times per week. The treating clinicians were clear that for C to receive dialysis against her consent would be a significant undertaking – if C took measures to try and stop such treatment then it would become immediately unsafe to C and also potentially to medical staff. In order to dialyse C against her will she would need to be sedated with that sedation being heavy enough to render her unconscious for the duration of dialysis. This would have to be undertaken in the high dependency setting. The risks associated with heavy sedation included respiratory depression and low blood pressure which may require intervention including intubation and ventilation. The doctors are also clear that a person trying to avoid dialysis may remove the dialysis tubes resulting in the need to insert a dialysis tube into a large vein each time and under sedation with the risks of bleeding and infection. This risk significantly was increased given C’s abnormal clotting. There was a risk of damage to veins thereby restricting venous access. This has to be considered in the context that it would occur once every five days although risks of sudden cardiac event or deterioration increase over time after more than three days without dialysis.

The hospital trust conceded that this was a finely balanced case – that of an individual with capacity making an unwise decision and an individual lacking capacity to make the decision in question. However the trust argued that C lacked capacity and accordingly the Mental Capacity Act was invoked.

The Official Solicitor who, due to the urgency of the application had been able to meet with C on two occasions immediately prior to the hearing, recorded C’s clear view as to wishes and consistently maintained that she had capacity to make the decision to refuse further treatment and cited Re SP (a patient: capacity to consent termination) [2013] EWHC 1417 (COP).

Due to the urgency of the application the judge himself had not been able to meet with C – she was too ill to attend court and there was insufficient time to arrange a meeting prior to the court hearing.

Decision
The court considered the functional test set out in section 3 (1) of the Act. The court was not satisfied that the Trust had proved the requisite standard that C was unable to use and weigh information relevant to the decision in question. The court was not satisfied that C lacked belief in her prognosis and a future that included a recovery to the extent that she could not use that information to make a decision or that C was unable to weigh a positive prognosis and the possibility of a future recovery in the decision-making process. The court concluded that in law C was entitled to refuse treatment offered to her benefit. That did not prevent the treating team from continuing to offer appropriate treatment.

Discussion
This decision brings into sharp focus the preservation of life v the rights of a capacitous and thus autonomous and sovereign individual. As the judge highlights at the end of his judgment, C’s decision seemingly based upon her inability to regain her “sparkle” may alarm and possibly horrify many. He recognises that “others in society may consider C’s decision to be unreasonable and illogical or even immoral within the context of the sanctity according by society in general. None of this however is evidence of a lack of capacity”.

It must be stressed that as with all judgments issued in the Court of Protection and particularly those concerning health and welfare, this judgment is also highly fact specific. This judgment cannot be seen as a licence, for example, for unscrupulous relatives who may be potential beneficiaries of an estate, to be able to persuade an unwell and possibly elderly relative to make and communicate a decision to terminate life-saving treatment.

This judgment is bound to create divisions within public opinion but may be seen as one which is legally honest. It has strictly applied the provisions and principles of the Mental Capacity Act and come to a conclusion which is plainly correct in law.

Read the full text of the judgment on Bailii