Heart of England NHS Foundation Trust v JB (by her litigation friend the Official Solicitor) [2014] EWHC 342 (COP)

JB was a 62 year old who suffered from a number of mental and physical disabilities.  She suffered from paranoid schizophrenia and lacked insight into her mental illness but accepted medication to avoid being returned to hospital.  She also suffered from hypertension, diabetes and anaemia.  Her community psychiatric nurse described her as a strong willed woman.

In May 2103 JB attended a foot clinic with ulcers to both feet and was treated.  By August the condition of her right foot had deteriorated and was gangrenous.  In October JB was admitted to hospital and the medical advice was that the foot could not be saved and would need to be amputated.  JB did not agree to this and doubt was expressed about whether she had the capacity to decide.  A number of opinions were expressed, some doctors considering that she lacked capacity and others that she was simply making what was seen as an unwise decision.

JB continued to refuse consent for the amputation on some occasions, but she expressed consent on other occasions.  Doubts were again expressed about her capacity.  The Trust applied to the Court for a declaration that JB lacked capacity to make a decision about serious medical treatment.  It sought a declaration that it would be in her best interests to have a through-knee amputation and for her to be sedated if she resisted.

The court found that JB undoubtedly had a disturbance in the functioning of her mind in the form of paranoid schizophrenia, but that it was not established that she thereby lacked the capacity to make a decision about the surgery for herself.  The evidence presented to the court established that JB had the ability to understand, retain, weigh and use the necessary information about the nature, purpose and effects of the proposed treatment.  The court accepted the view that JB’s schizophrenia was relevant to the way in which she decided, and not to her capacity to decide.  Her tendency at times to be uncommunicative or avoidant and to minimise the risks of inaction were “understandable human ways of dealing with her predicament” [para 38] and did not amount to incapacity.

The Court did not accept the Trust’s submission that incapacity can be deduced from isolated instances of eccentric reasoning on the part of JB: for example agreeing to intravenous antibiotics or blood transfusion but refusing the necessary cannulation.  The Court also did not accept the Official Solicitor’s submission that the issue was whether JB had the capacity to consent to a below-knee amputation as opposed to operations no longer proposed by the Trust, i.e. through-knee or above-knee amputations.  The Court held that what is required is an understanding of the nature, purpose and effects of the proposed treatment.  In this sense ‘the proposed treatment’ was surgical treatment for a potentially gangrenous limb, and was not limited to one of the possible operations.  Treating each type of amputation as different was an impractical and unnecessary distinction that would diminish the scope of JB’s capacity and potentially lead to unprofitable reassessments with every change in the treatment programme.  In conclusion, the court held that JB did have the capacity to decide whether to undergo an amputation of whatever kind and the proceedings were therefore concluded.

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