Wye Valley NHS Trust v Mr B (by his litigation friend, the Official Solicitor) [2015]

Wye Valley NHS Trust v Mr B (by his litigation friend, the Official Solicitor) [2015] EWCOP 60

The case concerns the medical treatment of Mr B, a 73 year old with a severely infected leg. Doctors treating him wished to amputate his foot in order to save his life. Without the operation Mr. B would die within a few days. If the operation were to be undertaken it may prolong his life for several years.

Mr. B consistently and strenuously made clear that he did not want the operation. However Mr. B also had a long-standing mental illness and lacked capacity to make the decision.

The court upheld the judgement of incapacity in relation to the making of the decision but found that the operation would not be in Mr. B’s best interests. The judgement therefore concluded that it would be unlawful to carry out the operation whilst it remained against Mr. B’s wishes.

The judgement sets out that the starting point is a strong presumption that it is in a person’s best interests to stay alive. However, this is not an absolute, the presumption can be rebutted. Quoting Baroness Hale in Aintree v James [2014] “The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be…  the purpose of the best interests test is to consider matters from the patient’s point of view

Where a patient is suffering from an incurable disability, the question is whether he would regard his future life as worthwhile. It is not for others to say that a life which a patient would regard as worthwhile is not worth living (Re J [1991] Fam 33).

As in re MM, the judgement stresses the vital need to accord great importance to the wishes, feelings, beliefs and values of P. Interestingly this judgement goes further in stating that P’s views are not in principle entitled to less weight than those of a person with capacity. It is of course the case that P’s views are not automatically decisive as they would be in the case of a person with capacity. However, Justice Jackson concludes that once a determination as to capacity has been made, this does not have further implications for the weight (or lack of weight) which should properly be accorded to P’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.

The judgement goes on: “This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the [Mental Capacity] Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an “off-switch” for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view.” [11]

In this case, both parties accepted that a person with full capacity could reasonably decide not to undergo the proposed amputation, having fully understood the implications of that decision. Thus, they are effectively arguing that, because in this case Mr B lacks capacity, his wishes and feelings should be displaced by the presumption in favour of life. It is important that people with a disability are not deprived of the full range of reasonable outcomes available to others by the very fact of their disability.

The judgement goes on to elaborate on the appropriate reasoning in relation to the role of disability in the development of an individual’s personal values and beliefs: “In this situation, I do not find it helpful to see the person as if he were a person in good health who has been afflicted by illness. It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. It is no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it is to speak of an unmusical Mozart.”

The judgement is clear that this does not prevent delusions arising from mental illness leading to a person’s wishes and feelings being given less weight where that is appropriate, but that this should not be an automatic consequence of the wishes and feelings having a religious component. Religious beliefs are based on faith, not reason, and can significantly influence a person’s attitude to  medical treatment without in any way suggesting a lack of mental capacity.

It cannot be right that the religiously-based wishes and feelings of those lacking capacity must always be overruled. That would not be a proper application of the best interests principle.

Interestingly, the judgement makes a side comment on the current Law Commission proposal to amend the MCA to contain a presumption that an incapacitated person’s wishes and feelings should be determinative of his best interests unless there is good reason do depart from the assumption. Justice Jackson takes the view that this would not have aided the resolution of this or similar cases but would merely result in debate about the presence or otherwise of a “good reason” and elevate one important factor at the expense of others. He expresses the view that the key problem is poor implementation of the MCA as it stands, rather than any need to alter it.

Leave a Reply

Your email address will not be published.