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Dying Patient’s Own Wishes Determine ‘Best Interests’ Decision


A judge in the Court of Protection has recently ruled that a mentally ill man should not have his leg amputated against his wishes, even though the decision will bring about his death.

A 73 year old man, who has not been named, has been the subject of court proceedings brought by the Wye Valley NHS Trust. Doctors wanted to amputate his leg below his knee even though the man did not agree to the surgery. He suffers from diabetes and due to complications with the disease developed an ulcer which has not healed. Doctors advised that without surgery, he is likely to die in the very near future due to the infected foot.

The man also suffers from paranoid schizophrenia and as a result of his mental health problems, was assessed as not having the mental capacity to make the decision to consent or refuse medical treatment.

The judge was also told that even with the surgery, he may only live for a few more years. Before making his decision, Mr Justice Peter Jackson visited the patient in hospital and spent about an hour discussing matters with him. The judge reports that the patient “opposed surgery in the strongest possible terms.”

What is interesting about this case, is that the Official Solicitor supported the application by the NHS Trust for the surgery to be performed but the judge ruled against it.

The Official Solicitor is appointed as a litigation friend in cases where a person does not have capacity to instruct a solicitor. They are known as a ‘litigation friend of last resort’ and are appointed when a person has no friends or relatives who could act as litigation friend on their behalf, such as in this case.

When a person does not have the capacity to make a decision themselves, a ‘best interests’ decision must be made on their behalf. There are many factors which need to be considered under section 4 of the Mental Capacity Act 2005, one of these being the wishes and feelings of the person concerned. It is clear from the Judge in this case that he attached great significance to the man’s own wishes and feelings in reaching his decision, despite the hospital’s application being supported by the Official Solicitor.

Helen-DandridgeHelen Dandridge, solicitor within the Court of Protection team commented, “The case also throws up an interesting debate about the role of a litigation friend, whether that is the Official Solicitor or a person’s relative. Should they present their case to the court based on what they believe is in that person’s best interests, or should they simply present their client’s own wishes and feelings (as far as they can be ascertained), even if they strongly disagree with them? It is not an easy balance to strike and each case will turn on its own facts.”

Court of Protection proceedings can be extremely complex and it is important that you obtain legal advice at an early stage. Our specialist Court of Protection team are able to offer you specialist advice and, if you qualify, legal aid may be available.

Contact us today on 01484 538421.

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