ZA, Re (Mental Capacity Act 2005) [2021] EWCOP 39

Best interest decision concerning whether to amputate a woman’s leg where she no longer has capacity but had expressed a desire not to consent to treatment when she was capacitous in the past.

ZA was diagnosed with acute schizophrenia in 1982 and in the ensuing years has been diagnosed with Type 2 diabetes. A side effect of that has been a series of foot ulcers which have led to osteomyelitis. The medical team looking after her have now concluded that she should have an amputation above the knee. If she does not have the treatment she may only live a matter of months. The finding that she now lacks capacity was not challenged but in the past - when she had capacity - she had made comments about not wanting such drastic treatment.

Finding that forcing ZA to have the amputation was not in her best interests, Cohen J differentiates this from other cases reported as ZA's longstanding capacitous wishes not to have the treatment have been clearly expressed. While he recognises [43] that there is a strong presumption that it is in the best interests for a person to stay alive it is “not an absolute” following see Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 and at [44] adds:

“This case is not about someone choosing to die. It is about someone who wishes to take her chances and enjoy what she perceives as the best standard of living, independence and dignity, even if it is for a shorter period. “

Read the full judgment on Bailii