Over his or her own body and mind, the individual is sovereign

Family Law|December 2nd 2015

Well, I didn’t expect to be using a quotation from John Stuart Mill as a title to one of my posts. However, when I was looking for a title to this post, the above words jumped out of the judgment of Mr Justice MacDonald in the Court of Protection case Kings College Hospital NHS Foundation Trust v C & Another, which is the subject of the post.

I have often spoken here of the difficult decisions that our judges regularly have to make in the course of their work. Sometimes those decisions are, quite literally, matters of life and death. For example, judges are often faced with the question of whether or not life-sustaining treatment should be withdrawn from a patient. This case concerned that issue. However, here the judge was not faced with the more common scenario of an NHS Trust seeking ‘permission’ to discontinue treatment because that was considered to be in the patient’s best interests. Here, the Trust wanted to continue treatment but the patient did not want it to continue. Concerned as to whether the patient had the capacity to decide whether or not to consent to the treatment, the Trust quite properly sought a decision from the court as to whether the patient did indeed have that capacity.

At the centre of the case was a 50 year-old woman, ‘C’, who Mr Justice MacDonald described thus:

“C is a person to whom the epithet ‘conventional’ will never be applied. By her own account, the account of her eldest daughters and the account of her father, C has led a life characterised by impulsive and self-centred decision making without guilt or regret. C has had four marriages and a number of affairs and has, it is said, spent the money of her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption of alcohol has been excessive and, at times, out of control. C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and ‘living the high life’. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C’s words, ‘sparkles’.”

Unfortunately, in recent times C’s life has, to use the words of Mr Justice MacDonald once more, followed a trajectory that has moved away from what she terms her “sparkly” lifestyle. In December 2014 she was diagnosed with breast cancer. She underwent a lumpectomy in January 2015 and radiotherapy in March 2015, with treatment concluding in May 2015. In August 2015 she experienced the acrimonious breakdown of a long term relationship, which also resulted in the loss of her business, the loss of her home and the generation of significant debt.

On 7 September, C attempted suicide by taking sixty paracetamol tablets with champagne. The attempt caused serious damage to her liver and kidneys. The condition of her liver has improved, but an improvement in her kidney function has yet to occur. Accordingly, she is now receiving dialysis. The prognosis is that her kidneys should recover in due course, but she may require dialysis for the rest of her life.

C now refuses to undertake further dialysis. Her rationale for this is that she believes she may need dialysis for the rest of her life. She sees a bleak future if she cannot have a life of socialising, drinking and partying with friends and in any event the prospect of getting old scares her both in terms of illness and appearance.

Now, I’m not going to go into the complexities of the evidence as to whether C has capacity to refuse further treatment, but essentially Mr Justice MacDonald found that the Trust had not proved to the requisite standard that C was unable to use and weigh information relevant to the decision such that she lacked capacity to make that decision. As Mr Justice MacDonald said, some people may be horrified by C’s decision but, as John Stuart Mill made clear, a person with full capacity has an absolute right to choose whether to consent to medical treatment, irrespective of their reasons for making that choice.

In other words, as Mr Justice MacDonald concluded:

“…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.”

The full judgment in Kings College Hospital NHS Foundation Trust v C & Anor can be found here.

Photo of the Royal Courts of Justice by Joe Dunckley via Flickr

Author: Stowe Family Law

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