HEAL UoS

Posts Tagged ‘Capacity’

This week’s HEAL event: ‘Sterilisation in his best interests?’ A roundtable discussion of A NHS Trust v DE

In 2013, Best interests, Capacity, Meetings, Reproduction on November 25, 2013 at 8:00 am

This week, HEAL is holding a roundtable discussion with one of our graduates, Jess Connelley, a solicitor specialising in Court of Protection issues, and Dr Andreas Dimopoulos, from Brunel Law School, on Wednesday 27 November 1-2.30pm, in building 4, room 4053.

The case of A NHS Trust v DE [2013] EWHC 2562 (Fam) hit the headlines over the summer; see for example the BBC news coverage.  Andreas was motivated to blog about the case, expressing concern with the reasoning adopted by the High Court judge in reaching her decision. In contrast, Jess blogged positively about the case, heralding it as ‘a success for the Mental Capacity Act and the Court of Protection’. The idea for a roundtable discussion emerged from Twitter exchanges thereafter, including with @juliewintrup, a member of the HEAL network at Southampton.

We hope you will join us for what promises to be an interesting and lively discussion of this case.

Please email Adrian at A.M.Viens@soton.ac.uk if you wish to attend.

 

Caroline Jones

What is a presumption worth?

In 2012, Capacity, Key Legal Concepts on July 9, 2012 at 9:00 am

Presumptions are a promising legal tool. They work in two ways. First to establish a default position – in the absence of specific evidence what should we presume the right position to be? Second to ensure that we only move way from that default position when we are satisfied that the evidence on which we are doing so is clear enough to justify displacing the presumption in question. These two separate but connected questions can be described in terms of the onus, or burden, of proof and of the standard of proof. Thus, the presumption of innocence in criminal law means first that the onus lies on the prosecution to prove that the accused has perpetrated a crime, and second to do so beyond all reasonable doubt (the criminal standard of proof, rather than against the civil standard – the balance of probabilities). The higher the standard of proof, the more weighty the presumption can be said to be.

Such presumptions can be used in health care law to point professionals  in the direction of what is thought to be the most likely desirable practice and, when appropriately weighted, may be used to ensure that they will only depart from that practice when they have a solid basis for doing so. In practice, however, courts may not apply presumptions in the way that is anticipated. A presumption with no weight at all (so that no real evidence is required to rebut it) is barely worth its place in the law.

These issues have been neatly illustrated in recent cases concerning decisions by adults that they wish to be allowed to die. The Mental Capacity Act 2005 section 1 established a presumption of competence to which the courts seem to have given little weight. Further, they seem to have created a strong presumption that life is to be preserved despite the absence of any weighting in the best interest checklist in s 4 of that Act.

In Re E (Medical treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (15 June 2012) Peter Jackson J found that a 32-year-old woman who suffered from severe anorexia nervosa, who was refusing to eat and would accept only a small quantity of water, lacked capacity to make a decision about life-sustaining treatment. Although the judge recognised that there was a presumption that E had competence, he found that it was displaced by her ‘obsessive fear of weight gain’ (which made her ‘incapable of weighing the advantages and disadvantages of eating in any meaningful way’). He said that this ‘compulsion’ had become ‘the card that trumps all others’ and ‘overpowers all other thoughts’.  His evidence to support this was that when a conversation turned to the question of weight gain she began to cry, having previously been ‘smiling and laughing’ [Para 49]. In addition as a secondary reason for the conclusion of  lack of competence, she was in a ‘drug haze’ due to strong sedative medication [para 50]. The court reached this conclusion despite the views of the Official Solicitor’s representative, and of the two doctors who knew the patient best, that her views should be respected [para 51].

E had also made two advance declarations that she did not want to be resuscitated or to be given any medical intervention to prolong her life. Here, the Court of Protection had the power to rule on whether she had capacity when she made it (MCA Code of Practice, para 9.67) but Jackson J did not consider that any weighted presumption of capacity was applicable. To the contrary ‘where evidence of capacity is doubtful or equivocal it is not appropriate to uphold the decision’ [para 55]. The girl’s parents, all the health professionals treating her, her independent mental health advocate and her solicitor had all believed that she had capacity at the time that she made the advance decisions. However, Jackson J held ‘on the balance of probabilities’ that she had in fact lacked capacity; only a ‘full, reasoned and contemporaneous assessment evidencing  mental capacity’ would have led him to a different view [para 65]. In the absence of such evidence he would not accept that she was competent.  In effect, he held that there is a presumption of incapacity in advance decision cases, despite the terms of section 1 of the Act. Further, that presumption carried considerable weight and only strong evidence would rebut it.

He then turned to consider whether treatment (i.e. force feeding) was in E’s best interests, as required under section 4 of the MCA in relation to patients who lack competence.

One might be forgiven for thinking that the arguments in favour of palliative care, allowing E to die were considerable. Jackson summarised them as respect for E’s wishes and her personal autonomy, sparing her the risks associated with and ‘harrowing aspects of’ treatment which had limited prospects of success and about which E’s parents and clinicians were ‘at best sceptical’, allowing her to die with dignity and close to home [para 115]. These had to be ‘balanced’ [para 114]  against the fact that,without forcible feeding,E would die and lose the 10-15% chance to recover and lead a relatively normal life (after 1-2 years of hospital treatment) [paras 113, 116]. Further, ‘the longer E lives, the greater the opportunity for her to benefit from treatment and to revise her views about her future’ [para 116]. ‘At its simplest, the balance to be struck places the value of E’s life in one scale and the value of her personal independence in the other, with these transcendent factors being weighed in the light of the reality of her actual situation’ [para 118].

Jackson J accepted that the MCA ‘might have given absolute priority to the preservation of life’ but had not actually done so [para 121]. In fact, the MCA gives no priority to any one factor, let alone an ‘absolute’ one, setting out the test as one of ‘best interests’. Further, the only reference to the value of life is to exclude anything ‘motivated by a desire to bring about [the patient’s]  death’ (s 4(5)). Jackson J seems to have created a presumption in favour of preserving life in his suggestion that only where care was futile should it be stopped; ‘the prospects of her making a reasonable recovery are highly uncertain, but it cannot be said that treatment efforts are doomed to fail or that treatment would inevitably be futile’ [para 122]. He also created a presumption that it seems almost impossible to rebut by characterising  ‘the balancing exercise [as] not mechanistic but intuitive and there are weighty factors on each side of the scales’ [Para 129]; an approach that makes the conclusion a matter of personal judgment not reasoned argument. Any criticism of the balance struck is therefore an attack on the opinion rather than rationality of the judge. No reasons are given for the striking of the balance, only a description of the factor that inform judicial intuition.

So a clear statutory presumption of competence was neutralised and a weighty judge-made presumption was inserted into a statutory framework that lacked one. This does not tell us that presumptions are not useful, but it does make us sceptical as to the uses to which they might be put.

Jonathan Montgomery