Christopher Johnston - Medical Treatment: Decisions and the Law

Medical Treatment: Decisions
and the Law

The Mental Capacity Act in Action

Medical Treatment:
Decisions and the Law

The Mental Capacity Act in Action

Fourth Edition

Editors:

Christopher Johnston QC

Sophia Roper QC

Authors:

James Berry

Louisa Brown

Neil Davy

Bridget Dolan QC

Elizabeth Fox

Rachael Gourley

Rhys Hadden

Caroline Hallissey

Clare Hennessy

Michael Horne QC

Nageena Khalique QC

David Lawson

Jemma Lee

Jamie Mathieson

Frances McClenaghan

Angus Moon QC

Michael Mylonas QC

Debra Powell QC

Susanna Rickard

Anthony Searle

Sarah Simcock

Emma Sutton

George Thomas

Anna Tkaczynska

Michael Walsh

Claire Watson QC

Oliver Williamson

All from Serjeants Inn Chambers, London: serjeantsinn.com/news
and-resources/medical-treatment-decisions/

First edition by: Robert Francis QC & Christopher Johnston QC

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To Charlie Marriage

How the law deals with the issues surrounding medical treatment decisions speaks volumes about the values and morals of our society. It relates to the very essence of life. How rigorously do we protect peoples autonomy? Who do we choose to protect from themselves? Who do we leave free to make what may be irrational decisions about their bodies or their very existence? What matters to us in defining whether a life is worth living? And, fundamentally, what is life? When does it begin? When does it end?

This book addresses those issues in the context of a practical legal guide. Our aim is simply to set out the law. As barristers we do not seek to provide our views on the ethics underlying the decisions the courts have taken and on the statutory approach adopted by Parliament. There are many excellent texts which wrestle expertly with those ethical dilemmas. We simply say here that, in our opinion, the law as it currently stands in general reflects a mature democratic compromise between the need to protect those who cannot protect themselves and the fundamental human right of personal autonomy.

This fourth edition required a significant rewrite of all chapters and in particular the chapters on Consent and Capacity, Deciding for Others Children, Going to Court and Withdrawal and Withholding of Treatment. We have expanded chapters on Deciding for Others Adults, Sterilisation & Contraception and Religious Observance and Objection to Treatment. We have added new chapters on the Right to Die and Access to Healthcare Choice, recognising that increased public debate about these areas readily translates into increased demand for public law challenges to decisions which go against peoples wishes and expectations.

Since the third edition of this book in 2016, there have been four Supreme Court cases with direct impact on the books subject matter: N v ACCG, addressing (for the first time in the Supreme Court) the assessment of capacity. These are analysed in the body of this book.

The underlying approach of the judiciary to the law in this area has also continued to develop in line with a more modern, rights based approach. We commented in the previous edition on the judiciarys increased focus on the promotion of individual autonomy, recognising that this itself is a facet of protecting the rights of an incapacitous or otherwise vulnerable individual. This trend has continued strongly since then, particularly under the new Vice President of the Court of Protection, Sir Anthony Hayden. Court of Protection judgments routinely record an intense scrutiny of not only the overt wishes, but also the underlying beliefs and values of the person at the centre of the proceedings. The need for remote hearings occasioned by the Covid-19 pandemic has enabled many of these individuals to join in hearings and speak to the judge directly, and their active participation in proceedings is increasingly common. All of this is greatly to be welcomed.

In addition, the growing public interest in the work of the Court of Protection has developed the culture of openness and transparency which many of those who practice in this area would say was always there, despite media suggestions to the contrary. The pandemic allowed members of the public to watch remote hearings, and see for themselves the important work which this court does; many of those have in turn blogged about it to the wider world.

While much of this progress has been positive, some media coverage has been less positive, especially in widely publicised cases of disagreement between doctors and parents about a childs best interests where the child has been named. It is impossible to imagine the anguish felt by parents in the situation of those at the centre of these cases; it is sadly necessary for some to seek publicity to raise funds, and unsurprising that some are simply enthusiastic about publicity in support of their cause. This has, however, led to real difficulties for some clinical staff struggling to provide care for all their patients, and caused great anxiety to hospital managers wishing to ensure they can do so without unhelpful distraction.

This book is in four sections. First, we consider general principles and procedures. We provide a guide to the legal principles underlying patient autonomy, advance decisions and the treatment of those without capacity (whether children or adults). We explain the legal tests and processes should a treatment dilemma reach court. We then address deprivation of liberty and restraint, an issue which arises in many of these cases, and going to court, covering the procedure for both adults and children. Secondly, we address the vital question of the judicial approach to access to healthcare. Thirdly, we have fully updated specialist chapters which consider the particular problems the authors have dealt with in the High Court and Court of Protection including cases involving abortion, sterilisation & contraception, assisted reproduction, pregnancy & childbirth, feeding, religious observance & objections to treatment, withdrawal & withholding of treatment, the right to die, treating suicidal patients, end-of-life decisions, and finally human organ and tissue donation. Fourthly, appendices set out some additional materials. We will post additional appendices and updates in this ever-changing area of law on our website: .