The recent case of Wye Valley NHS Trust v B (Rev 1) [2015] EWHC 60 (COP) (28 September 2015) represents a humane and careful analysis by Mr Justice Peter Jackson of the best interests test, its
The recent case of Wye Valley NHS Trust v B (Rev 1) [2015] EWHC 60 (COP) (28 September 2015) represents a humane and careful analysis by Mr Justice Peter Jackson of the best interests test, its application and how this directly related to Mr B. In this case there was a clear refusal to define this individual by reference to his incapacity and mental illness, rather it sought to recognise his beliefs and core quality of “fierce independence” which was perceived by Mr B as being under attack.
Looking at the facts of this case; Mr B was a diabetic with a severely infected leg and there was a medical consensus that an amputation of his foot was required in order to save his life. Mr B had a longstanding view that he did not want the "interference" of the operation and was not afraid of dying. He suffered from peripheral neuropathy, a recognised complication of diabetes, resulting in reduced sensation in the feet which can lead to the patient being unaware that they have damaged their lower limbs. In addition, throughout his adult life, Mr B had suffered from paranoid schizophrenia that included auditory hallucinations where he heard voices of angels and the Virgin Mary. Mr B did not have the capacity to make the decision as to whether to have the surgery, therefore it fell to the Court of Protection to determine whether the operation could be lawfully performed in his best interests. Dr Glover the treating psychiatrist concluded in his report that by a very fine margin, it would be in Mr B's best interests to have a below-knee operation. He stated that while a body of his peers would almost certainly agree with his view of capacity, they would probably splinter widely in their views on best interests. In his evidence, he accepted that he did not know where the welfare balance should fall. In those circumstances, he felt more comfortable morally in opting to support the continuation of life and being challenged on that conclusion.
The Trust were in favour of surgery and submitted that little weight should be given to Mr B's wishes, feelings and religious beliefs because they were intimately connected with the cause of his lack of capacity. This was opposed by the Official Solicitor who did not accept that no significant weight should be given to Mr B's wishes and feelings. He also disagreed that slight value should be given to his religious beliefs, which were deemed sufficiently long-standing to be integral to him. After visiting Mr B in hospital to get a clearer understanding of his needs and wishes, as well as to explain to him the consequences of foregoing the surgery, the Judge concluded that the operation would not be lawful.
Notwithstanding the fact that the judge was satisfied that Mr. B did not have capacity to make the decision for himself, in deciding on what was in Mr. B's interests, the judge paid heed to the fact that Mr. B had said "I don't want my leg tampered with. I know the seriousness. I just want them to continue doing what they're doing. I don't want it. I'm not afraid of death. I don't want interference. Even if I'm going to die, I don't want the operation." The judge noted "All this was said with great seriousness, and in saying it Mr B did not appear to be showing florid psychiatric symptoms or to be unduly affected by toxic infection."
He stated in conclusion:
"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. There is a difference between fighting on someone's behalf and just fighting them. Enforcing treatment in this case would surely be the latter."
The careful point by point analysis of the factors in favour of the surgery and those against in this case show the approach that needs to be taken in such cases. Clearly this is incredibly difficult for those caring for people in such circumstances, where naturally there is a presumption in favour of life and to seek to exhaust all clinical options. What this case illustrates is that opinion and the capabilities of medical science must be balanced with the wants and wishes of the person at the centre of the discussion. Evidently this will prove to be a difficult exercise for Trusts and we anticipate that further applications to the Court for clarification are likely.
Looking at the facts of this case; Mr B was a diabetic with a severely infected leg and there was a medical consensus that an amputation of his foot was required in order to save his life. Mr B had a longstanding view that he did not want the "interference" of the operation and was not afraid of dying. He suffered from peripheral neuropathy, a recognised complication of diabetes, resulting in reduced sensation in the feet which can lead to the patient being unaware that they have damaged their lower limbs. In addition, throughout his adult life, Mr B had suffered from paranoid schizophrenia that included auditory hallucinations where he heard voices of angels and the Virgin Mary. Mr B did not have the capacity to make the decision as to whether to have the surgery, therefore it fell to the Court of Protection to determine whether the operation could be lawfully performed in his best interests. Dr Glover the treating psychiatrist concluded in his report that by a very fine margin, it would be in Mr B's best interests to have a below-knee operation. He stated that while a body of his peers would almost certainly agree with his view of capacity, they would probably splinter widely in their views on best interests. In his evidence, he accepted that he did not know where the welfare balance should fall. In those circumstances, he felt more comfortable morally in opting to support the continuation of life and being challenged on that conclusion.
The Trust were in favour of surgery and submitted that little weight should be given to Mr B's wishes, feelings and religious beliefs because they were intimately connected with the cause of his lack of capacity. This was opposed by the Official Solicitor who did not accept that no significant weight should be given to Mr B's wishes and feelings. He also disagreed that slight value should be given to his religious beliefs, which were deemed sufficiently long-standing to be integral to him. After visiting Mr B in hospital to get a clearer understanding of his needs and wishes, as well as to explain to him the consequences of foregoing the surgery, the Judge concluded that the operation would not be lawful.
Notwithstanding the fact that the judge was satisfied that Mr. B did not have capacity to make the decision for himself, in deciding on what was in Mr. B's interests, the judge paid heed to the fact that Mr. B had said "I don't want my leg tampered with. I know the seriousness. I just want them to continue doing what they're doing. I don't want it. I'm not afraid of death. I don't want interference. Even if I'm going to die, I don't want the operation." The judge noted "All this was said with great seriousness, and in saying it Mr B did not appear to be showing florid psychiatric symptoms or to be unduly affected by toxic infection."
He stated in conclusion:
"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. There is a difference between fighting on someone's behalf and just fighting them. Enforcing treatment in this case would surely be the latter."
The careful point by point analysis of the factors in favour of the surgery and those against in this case show the approach that needs to be taken in such cases. Clearly this is incredibly difficult for those caring for people in such circumstances, where naturally there is a presumption in favour of life and to seek to exhaust all clinical options. What this case illustrates is that opinion and the capabilities of medical science must be balanced with the wants and wishes of the person at the centre of the discussion. Evidently this will prove to be a difficult exercise for Trusts and we anticipate that further applications to the Court for clarification are likely.