This is a judgment by Peter Jackson J on an application by the Wye Valley NHS Trust (‘the Trust’) to decide if it was lawful for the doctors treating the Patient (‘P’) to amputate his foot against his wishes.
Unusually the Judge met the Patient in hospital.
P is a 73 year old man who has a severely infected leg and if the foot is not amputated then he will shortly die - he may only survive for possibly a few days. If the foot was amputated then he may live for a few years.
P has lived with long standing mental illness. In his mid 20s P developed paranoid schizophrenia. For many years P has experienced auditory hallucinations where he hears the voices of angels and the Virgin Mary. P did not belong to any particular religion but Mary wanted him to be a catholic.
P had suffered from Type II Diabetes and his compliance with medication was inconsistent.
He did not have the capacity to make the decision himself and therefore the operation could only be lawful if it is in P’s best interests.
The court commissioned two experts, Mr John Scurr a consultant surgeon and Dr Tyrone Glover a consultant psychiatrist.
Mr Scurr concluded that although amputation was the only clinical option, there was doubt as to whether a below knee amputation was sufficient or whether the infection had spread that would require an above knee amputation. Without the operation the P would succumb to the infection and P was not expected to live probably more than a week or two. If P were to have the operation then the life expectancy is limited - a guess would be that P might live for another three years.
Dr Gover concluded that on a very fine balance it would be in P’s best interests to have the operation.
P was against the operation.
The court reviewed the principles set out in Aintree University Hospitals NHS Trust v James  AC 592 (see paragraph 5).
The court had in mind the protection of the European Convention on Human Rights, particularly Articles 2, 3 and 9.
The court held that it is a ‘great importance to give proper weight to his wishes and feelings and to his beliefs and values’ (see paragraph 10).
The court had to balance the fact that P was unable to weigh up the relevant matters in a rational way due to his lack of capacity and the presumption in favour of life (see paragraphs 11 to 13).
The court undertook a balance sheet exercise when assessing P’s best interests (See paragraphs 26 and 37).
Just because P lacked capacity it did not mean that there is no theoretical limit to the weight to be attached to P’s wishes and feelings. The wishes and feelings, and beliefs and values are as important to P as they are to anyone else; in some cases they may be more important.
The Judge refused to grant the application stating that an enforced amputation was not in P’s best interests.
This is a rare case where the judge went to see P himself. Although the expert evidence was in favour of the operation there was still a fine line as to whether or not it was in P’s best interests. The court having gone to see P in this case was invaluable in ascertaining what was in P’s best interests. Having met P the court could balance the weight it attached to P’s wishes and feelings, and values and beliefs accordingly.
Although the religious beliefs were part of P’s reasons for his lack of capacity, they had been an integral part of him and the court found that ‘His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his “fierce independence”, and it is that is now, as he sees it, under attack.’
The court concluded ‘I am quite sure that it would not be in Mr B’s 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 and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure’.
Read the full text of the judgment on Bailii
Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available.
Sign up for our free email alert
We do not share your details with any third parties and you can unsubscribe at any time
Useful books from Bath Publishing