A London NHS Foundation Trust v E

Where a person cannot understand or weigh information about proposed medical treatment, the court may determine that the person lacks capacity even if the person’s refusal appears deliberate. Indecision, avoidance or vacillation alone does not establish incapacity. The capacity inquiry requires understanding of the treatment’s nature, purpose and effects.

When deciding best interests, the court must consider welfare in the widest sense, including medical, social and psychological interests. It must assess the treatment, its prospects and likely outcome, identify the person’s wishes, feelings, beliefs and values, and consult those concerned with the person’s welfare. A balance between the consequences of treatment and non-treatment is required.

A London NHS Foundation Trust applied to the Court of Protection for declarations and authorisation concerning E, a 49-year-old man with diabetes, cardiac failure and a severely gangrenous foot. E opposed amputation of his left leg through the knee and wished to make his own decision after consulting his family.

The court considered expert evidence on E’s comprehension, retention and ability to weigh information, and evidence concerning the medical consequences of amputation and conservative management. The central questions were whether E had capacity to decide about the proposed treatment and, if not, whether amputation was in his best interests.

1. Capacity. The court found that E lacked capacity to make decisions about his current medical treatment. His cognitive deficits meant that he could not understand and weigh the relevant information, including that refusal of surgery was likely to be life-threatening. The court distinguished ordinary indecision, avoidance or vacillation from incapacity. The relevant understanding concerned the nature, purpose and effects of the proposed treatment, applying the guidance in Heart of England NHS Foundation Trust v JB [2014] EWCOP 342.
2. Best interests. The court applied the guidance of Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 at [38]. It considered E’s welfare in the widest sense, the medical risks and prospects of amputation, the likely outcome of conservative management, and E’s expressed wishes and beliefs. E’s refusal was principally based on false beliefs about the cause of his condition and the need for surgery, rather than a consistent assessment of the consequences of amputation.
3. Balancing the options. Without surgery, E would almost inevitably die, probably within a short period, whereas surgery offered a substantial prospect of preserving his life and leaving hospital. The court recognised the operative mortality risk, possible infection, pain, phantom limb syndrome, reduced mobility and rehabilitation difficulties. Those risks were outweighed by the near certainty of death and suffering without treatment. E’s brother and the Official Solicitor supported surgery.
4. Order. The application was granted. The court consented on E’s behalf to the proposed amputation and ancillary care, including sedation and, as a last resort, physical restraint.