King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80 read judgment
A woman who suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. Continuation of such treatment is unlawful, even if the refusal seems irrational to others. As the judge said, this rule
reflects the value that society places on personal autonomy in matters of medical treatment and the very long established right of the patient to choose to accept or refuse medical treatment from his or her doctor (voluntas aegroti suprema lex). Over his or her own body and mind, the individual is sovereign (John Stuart Mill, On Liberty, 1859).
The Trust’s further application to be allowed to restrain C “physically or chemically” from leaving the hospital where she was receiving the dialysis was therefore rejected.
The coverage of this case reflects a certain level of social disapproval. “Right to die for socialite scared of growing old” – “Socialite allowed to die was terrified of being poor” run the headlines. Behind them lurks an essentially religious consensus that people should not be allowed to opt out of senescence and its associated poverty and suffering, such matters being for God alone. There is also a measure of censoriousness behind the details brought to court regarding C’s attitude to motherhood and men, the news that she had breast cancer, her love of “living the high life” and her dread of growing old “in a council house”.
Although her attempt at suicide was not in itself adduced as evidence of her lack of capacity, her attitude toward her future was. Her failed enterprise with paracetamol had led to the very thing she was presumably seeking to escape, which was disability and dependence on others. Although the prognosis for kidney injury after such an overdose is generally good, with patients recovering after several weeks of treatment, this was not the case for C; her consultant predicted that the damage was probably irreversible. Without dialysis, she was given under two weeks to live. However, dialysis without her consent would have entailed a horrible future –
in order to dialyse C against her will she would need to be sedated with that sedation being heavy enough to render her, essentially, unconscious for the duration of the dialysis.
In order to achieve this safely the procedure have had to be undertaken in “a high dependency setting”; in effect, imprisonment in hospital. Insufficiently sedated patients who attempt to remove their dialysis tubes risk infection and clotting each time they are reinserted.
Against this background C’s decision to refuse further treatment does not seem reprehensible or even irrational.
Under English law a person is deemed to have mental capacity unless proved otherwise. This is the case, however inexplicable their behaviour. As the judge said
“The temptation to base a judgment of a persons capacity upon whether they seem to have made a good or bad decision, and in particular on whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Heart of England NHS Foundation Trust v JB  EWHC 342 (COP) at 
A decision not to have life-saving medical treatment may be considered an unwise decision but it is not of itself evidence of a lack of capacity to take that decision,
notwithstanding that other members of society may consider such a decision unreasonable, illogical or even immoral, that society in general places cardinal importance on the sanctity of life and that the decision taken will result in the certain death of the person taking it.
A difficult but crucial test that the Mental Capacity Act asks the courts to conduct is whether the person is rendered unable to make the decision by reason of injury or disturbance to the brain, not whether their ability to take the decision is impaired by that impairment. To be considered capable under the Act, it is not necessary for a person to use and weigh every detail of the respective options relevant to the decision in question. If they are able to use and weigh other elements sufficiently to be able to make a decision, capacity will have been demonstrated (see Re SB  EWHC 1417 (COP)).
Thus, where a person is able to use and weigh the relevant information but chooses to give that information no weight when reaching the decision in question, …[they] cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision making process.
no ability to consider and weigh alternative futures, no ability to place herself in her daughters’ shoes when considering the effect of her refusing treatment or to weigh the impact on them of her suicide and no ability in respect of her prognosis …
Professor P believes that C is exhibiting what he describes as a “petulant” response to a lack of timely recovery.
Another consultant recorded that C had told him, shortly before the case came to court,
“I know that I could get better; I know that I could live without a health problem, but I don’t want it; I’ve lost my home; I’ve lost everything I’d worked for; I’ve had a good innings; it’s what I have achieved.”
C’s family believed that she did have capacity to decide whether or not to refuse treatment. Theyreported that the rationale expressed by C for refusing treatment was that she believed that she may need dialysis for the rest of her life and saw a bleak future without the material wealth she had been used to, and that getting old scared her both in terms of illness and appearance.
Reprehensible though others may consider this attitude to be, it is not evidence of insanity. The fact that the judge gave weight to C’s fears of growing old in a state of physical and material dependence may well “alarm and possibly horrify many”. Nevertheless, he had to acknowledge the importance to her of other factors, the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability.
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