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.

Patients do not often disagree with the clinician who is treating them. When disagreement occurs, under some circumstances, this may lead to the patient’s capacity to make decisions being questioned. It is natural to sympathise with the clinician who is dismayed by the patient who rejects advice that to bystanders would seem obviously consistent with that patient’s best interests. This is never more relevant than when life is at stake. When a patient is refusing life saving treatment, a nurse or doctor may question whether the person has capacity to make this decision; deducing that a refusal of life saving treatment may denote an inability to understand, retain and weigh the relevant information. Diagnosing such inabilities, if combined with an impairment or disturbance of the patient’s mind or brain, would confirm their incapacity. If the patient lacks capacity, a decision will be taken in his or her best interests as to whether life saving treatment should be given; and the starting presumption would be in favour of preserving life.

In a recent case¹, a woman in her early fifties, C, was facing a course of renal dialysis, estimated to be required for only six to twelve weeks. Three four hourly sessions each week would be needed. Without this treatment, she would quickly die; but with treatment, the outlook for her unsupported renal function was ‘cautiously optimistic’. C’s renal failure was acquired as a result of attempted suicide with paracetamol, but by the time of the hearing, her concomitant liver failure was resolving, and she was otherwise healthy.

C’s adult life was ‘characterised by impulsive and self-centred decision-making without guilt or regret; living her life entirely and unapologetically on her own terms. That life revolved largely around her looks, men, material possessions and living the ‘high life’’. In her evidence, one of her daughters, making it plain to the court that her mother was dear to her, nevertheless had learnt to accept her mother for what she was:

“My mother’s values, and the choices that she made have always been based on looks (hers and other people’s), money, and living (at all costs) what she called her “sparkly” lifestyle…her life was, from her point of view, a life well lived. I have never known her express regret, or really take responsibility for anything, including the choices she has made”.

In these circumstances, was C’s decision to refuse renal replacement therapy an indicator of her incapacity to make such a judgement? On the evidence presented, the court found that C had capacity to decide whether or not to consent.

In doing so, the judge reminded us that the patient’s right to choose whether or not to consent to medical treatment is not confined to making decisions that others might regard as sensible. The right to choose is not dependent upon the patient’s reason for making the choice being rational, or sensible, or even known. It is an uncomfortable thought that C rejected life despite the knowledge that some weeks of dialysis would enable her restoration to a quality of life enjoyed by countless survivors of an acute kidney injury. You may conclude that her choice was neither sensible, rational, nor correct.

There is a temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular on whether they have accepted or rejected medical advice, but this temptation must be avoided. To succumb to it would be to allow ‘tail of welfare to wag the dog of capacity’. In other words, doctors and nurses should not allow their (laudable and humane) instinct for giving the patient a good outcome to override evidence establishing a patient’s capacity. To do otherwise risks infringing the rights of that group of persons who, although vulnerable, are still capable of making their own decisions. This is particularly true of patients who suffer mental illness, who despite their illness, are able to make decisions about their medical treatment.

A capacitous adult is entitled to make a decision relating to treatment, notwithstanding its wisdom.

Kings College Hospital NHSFT v C & V [2015] EWCOP 80

Unwise decisions