Sentiments

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Compulsion may be needed for amputation. Hospitals sometimes seek judicial authorisation for amputations in incapacitated adults. Only an elementary grasp of the concept of human rights is necessary, to see that a mutilating procedure should only be imposed against the will of an incapacitated patient after referral to a neutral authority.

Generally, faced with a patient whose life will be lost but for amputation, judges accept that the benefits of the surgery justify its performance and aftermath. During this balancing exercise, courts (and surgeons) are bound by the Mental Capacity Act 2005 to take into account the wishes and feelings and beliefs of the patient concerned. Patients whose lives are immediately dependent on an amputation are generally so obtunded by their illness that their sentiments may not be discernable. Nevertheless, we all have a duty to explore the possibility of strongly held wishes or beliefs with those who accompany the patient, or in their absence an independent mental capacity advocate. Previous utterances during the time they had capacity may illuminate the patient’s attitude to amputation.

The court was confronted with Mr B, 73 years, with a putrefying foot, diabetes and schizophrenia. He had only days to live without surgery. A judgement emerged that should be read by any surgeon who has to make decisions in the best interests of others.

Mr B had for 50 years been guided by (what his doctors described as) delusions; of angelic voices, and the voice of the Virgin Mary. The voices had discouraged him from taking medications, perhaps accounting for his poor compliance with anti psychotic (and latterly hypoglycaemic and antibiotic) medications. His surgeons, faced with systemic sepsis originating from uncontrolled osteomyelitis, were able only to persuade Mr B to acquiesce to changes of his dressing. He utterly dismissed the offer of amputation.

The judge met Mr B, obtaining a deeper understanding of his view of the world, and of his ‘fierce independence’. He was satisfied that Mr B did not have the capacity to make treatment decisions about his foot, since he had only limited understanding of the information; and was unable to weigh the relevant evidence in coming to a decision. But Mr B had consistently opposed amputation, over the entire period of the year that it had been under discussion.

In his conversation with the judge, Mr B made plain his views on surgical interference, the prospects of death, his entry into heaven, his refusal of nursing homes, and conserving his leg. These wishes and feelings and religious beliefs were sufficiently long-standing to be integral to him. The judge noted that to think of Mr B without his illnesses and idiosyncratic beliefs would be no more meaningful than to think of an “unmusical Mozart.”

The weight that should be accorded to an incapacitated person’s beliefs and wishes and feelings were discussed in court. The Trust pleaded that the views expressed by a person who lacked capacity could be considered to have less weight than those expressed by a person with capacity. The judge firmly disagreed, holding that wishes and beliefs and values and feelings are as important to the incapacitated person as they are to anyone else. Arguably, more so.

Mr B’s religious sentiments were certainly of enormous importance to him. Concluding that there is no theoretical limit to the weight (or lack of weight) that should be given to an incapacitated person’s wishes, beliefs, values and feelings; the judge found that it would be unlawful to perform the amputation in the face of Mr B’s opposition.

Mr B was unusually clear in his sentiments. Their longstanding nature, together with the role they had played in the fabric of his life was persuasive. The weight accorded to them provided an unusual result, since in most cases, applications to declare amputation lawful in these circumstances will succeed. Nevertheless, this is an important reminder that despite their lack of capacity, a person’s wishes, beliefs and feelings may be enough to persuade surgeons (or courts) that palliation, not intervention, is in their patient’s best interests.

Robert Wheeler
Department of clinical law