Garden Court1 Garden Courtimage of 4 Paper Buildings logoFamily Law Week Email SubscriptionHarcourt Chamberssite by Zehuti

Court upholds ‘self-centred’ woman’s right to refuse life-saving treatment

‘A capacitous individual is sovereign in respect of her own body and mind’

Mr Justice MacDonald, sitting in the Court of Protection, has dismissed an application by an NHS trust, pursuant to s 15 of the Mental Capacity Act 2005, for a declaration that a patient lacked capacity to refuse dialysis treatment. The patient, C, who had been diagnosed with breast cancer and had also suffered kidney failure was aware that without such treatment she would die.

In Kings College Hospital NHS Foundation Trust v C and Another [2015] EWCOP 80 MacDonald J concluded:

"[O]thers in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general.  None of this however is evidence of a lack of capacity.  The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the 'normal' decision in this situation (if such a thing exists).   As a capacitous individual C is, in respect of her own body and mind, sovereign."

C was described as "living a life characterised by impulsive and self-centred decision making without guilt or regret". She had four marriages and was at times a 'reluctant and indifferent' mother and dedicated to living the high life.  Her obsession with her figure, looks and beauty was such that when she was diagnosed with breast cancer in December 2014, her reported concerns were what affect any treatment might have on her weight or appearance. It appeared to her family, and to the court, that she would rather die early 'with a bang' than see herself get old, ugly, or have to live a life that had no sparkle [8 – 12].

Following her diagnosis of breast cancer in December 2014, C's life rapidly disintegrated. She underwent a lumpectomy and radiotherapy in early 2015 and in August 2015 her long-term relationship broke down resulting in the loss of her business and financial security. She incurred significant debts, was the subject of criminal charges and was exposed to 'back to back psycho-social stressors' [13].

On 7 September 2015 C attempted to take her own life.  On being unsuccessful, C sought and received urgent medical help and on 29 September 2015 was transferred to Kings College Hospital.

C had taken 60 paracetamol tablets causing severe damage to her liver and kidneys. Over the course of extended and intense renal therapy treatment C's liver functioning slowly improved. The recovery to her kidney functioning was less encouraging; however it was anticipated that further treatment would have positive effects. Over the period September – November the prognosis for her kidney functioning improved; however the more time that elapsed without a significant improvement the more the chance of a 'full' recovery decreased. That said, in a statement dated 11 November 2015 C's treating clinicians gave a 85% - 95% chance of C's kidney functioning returning to 'normal'.

Nevertheless, over the course of this same period C indicated, reiterated and then maintained her wish to refuse the haemodialysis that was being administered to treat her kidneys, knowing that without such treatment she would die. In November 2015 two psychiatrists Dr R and Professor P both concluded that C did not have capacity to make decisions about her medical treatment.

Kings College Hospital NHS Foundation Trust applied under s.15 MCA 2005 for a declaration that C lacked capacity to make decisions about her medical care and treatment and further declaration pursuant to s.4A and s.15 that the Trust and its staff be authorised to provide such medical care and treatment to C as they judged to be 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 application came before Mr Justice MacDonald sitting in the Court of Protection on 13 November 2015.

After considering the law and evidence, MacDonald J concluded, on balance, that C had capacity to decide whether or not to receive dialysis (knowing that a decision to refuse medical treatment would almost certainly lead to her death).

In reaching its decision in what was an extremely challenging case, the court drew particular attention to the following: 

In finding that the Trust had not succeeded in meeting the full functional test under s.3(1) of the MCA there was no need for the court to proceed to the s 2(1) diagnostic  test. MacDonald J did however observe that even were he to have found s.3(1) to be met, he was not confident that he would have found that any such inability arose from an impairment or disturbance to the brain rather than from C's own characteristics.

The court concluded that although C's decision might well be considered to be 'unwise' it was satisfied that the risk of on-going discomfort and a future life devoid of 'meaning' (it being a subjective value) had determinate weight in C's mind. A decision that might 'horrify many' and be considered unreasonable and illogical by most was not indicative of a lack of capacity, and as a capacitous individual C was, in respect of her own body and mind, sovereign [97].

For the judgment and a detailed summary of the facts, law and evidence by Esther Lieu of 3PB Chambers (from which this news item is derived), please click here.