Speak for yourself

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.

Q is an independent 50-year-old woman who suffered severely from traumatic experiences in her childhood. Living an active social life with regular trips to her local town, she has an enduring interest in nature, and has made a hobby of photographing sunsets. Nonetheless, she has struggled unsuccessfully to come to terms with her bulimia and has received treatment for her emotionally unstable personality disorder. Her illness is pointedly relevant to her story, since one manifestation is her episodic profound hypokalaemia; for which she no longer wants to be treated.

Her illness has led to starkly different conclusions reached in several medical and psychiatric assessments over the years; perhaps casting doubt over some of the conclusions that have been reached. But there can be no doubt that based on these clinical findings Q had been admitted on at least eight occasions to psychiatric facilities, for periods up to 12 months. Her serum potassium had reached a nadir of 1.4 mmol/l; Q has yet to suffer dysrhythmias and had completed an Advance Decision to Refuse Treatment: 'I want to refuse all treatment relating to low electrolytes, orally, intravenously, regardless of my physical condition. This also includes immediate life-saving procedures and interventions such as CPR, defibrillation, care in any hospital environments to include mental health wards, ICU, CCU, critical care or a hospital ward due to the consequences of my chronic bulimia...the exception to this is medication to keep me physically comfortable".

It was accepted that this ADRT was entirely valid in its format and formalities.

The NHS Trust looking after Q had sought the High Court's judgement as to whether she had the capacity to make this document at the time of its creation; and whether Q lacked the capacity to represent herself in court, or to make decisions about the management of her hypokalaemia. In answering the second of those questions, the judge found that the capacity to be a party to the legal proceedings is addressed unambiguously by whether a person has sufficient clarity (and hence understanding of their legal problem) to allow them to instruct their legal adviser ...and then to '...understand and make decisions upon...the advice she may receive'. The lawyers acting for Q had been confident that their client understood the significance of the proceedings and could give instructions and take advice. The court, having heard Q's oral evidence in the witness box, found that she had the capacity to litigate...to speak for herself. There was no requirement for a lawyer or some other representative to give evidence to the court on her behalf. On the contrary, the court found that Q was ‘…an eloquent, articulate woman who told me what she wanted to say in well-reasoned and carefully constructed terms’.

The court heard evidence from an expert witness in psychiatry, who repeatedly referred to 'Q's inability to recognise the value of life' and made the following additional observation:

'Q attributes little value to her own life and sees little of value in her future. It must follow that her ability to weigh life and death medical decisions in the balance is impaired'. Perhaps unsurprisingly, the court took a different view: The value an individual attributes to life may correlate with their experience of it or their perception of its quality. This does not automatically establish an inability to weigh life against death.

Although the ADRT would be rendered irrelevant if the authorities decided to use the Mental Health Act 1983 to recall Q to hospital (since the powers of the Act make the compulsory provision of life -saving treatment lawful) Q was not being threatened by such compulsion. The case may have been brought by the Trust to clarify that there would be no legal option to force her to have treatment, unless the MHA 1983 was employed.

Passing judgement, the court found that Q, capacitous, did not want to die; but neither did she want to live under an oppressive medical and mental health regime that corroded her autonomy. ‘She is simply sick of it'. Although the court respectfully considered Q's decision to refuse treatment on the basis of her ADRT an unwise one, it recognised that this decision was Qs to make, and that her autonomy must be respected.

Mr Robert Wheeler
Department of clinical law