The Court of Protection recently considered the important issue of refusing serious medical treatment on behalf of a mentally incapacitated adult R (serious medical treatment) [2016] EWCOP 60.

The leading authority in this highly complex area of the law suggests that there remains a strong legal presumption that is it is generally in a person’s best interests to receive life-sustaining treatment Aintree University Hospitals NHS Foundation Trust v James.

In the Matter of R (serious medical treatment) Mr Justice Baker took a contrary view to the legal presumption declaring that it was lawful and in R’s best interest not to receive medical treatment but instead to be provided with palliative care only.

R was in his early 40’s when the declaration was made. He suffered from mental health issues throughout his life that saw him detained under the Mental Health Act and living in a secure ward for the last 6 years prior to this case being heard.

R’s illness meant that he presented as extremely paranoid with “abnormal perceptions, including the belief that he was being interfered with by other people”. This case was determined by reference to its very specific facts which are summarised below: –

  • R had an asymptomatic brain tumour that was considered not to be curable.
  • The aim of any treatment would be to prolong R’s life and maintain his quality of life. R would not be cured.
  • Life expectancy for this type of tumour ranged from 18 months to 10 years.
  • Surgery carried high risk of complications and side effects such as paralysis and a decline in cognitive function.
  • Chemotherapy and radiotherapy would require R to be compliant with the treatment for numerous treatment sessions both pre-and post-operatively. It was widely agreed that R would be unlikely to comply with treatment and that the hospital would “lack the resources to manage” R’s behaviour.
  • R’s family all agreed that R should not undergo treatment.

Mr Justice Baker considered paragraphs 5.31 to 5.33 of the Mental Capacity Act Code of Practice in detail alongside the treating hospital’s balance sheet of considerations both for and against proceeding with medical treatment of the tumour. The balance sheet was strongly weighted in favour of declining medical treatment, as follows: –

  • The tumour could not be cured;
  • The treatment would be exceptionally difficult for R to endure alongside his mental health problems;
  • R was unlikely to cooperate with the pre-and post-operative treatment such as radiotherapy, making it difficult to implement that course of treatment, with the likely need to apply force or physical restraint to ensure compliance with the treatment;
  • The surgery itself carried risks and may have diminished R’s quality of life;
  • R indicated that he did not want treatment (although he was inconsistent about his wishes and feelings in that regard).

The Court of Protection weighed up the significant adverse effects that were anticipated in subjecting R to treatment (in particular the chemotherapy and radiotherapy) against the fact that R’s would never be cured, albeit his life extended for a period. It was ultimately decided that it was “lawful and in R’s best interests not to undergo surgery and/or radiotherapy and/or chemotherapy and that he provided with palliative care only”.

Whilst the starting point is often that life sustaining treatment should be given, that is not absolute. The Court of Protection will declare that it is not in a person’s best interest to receive treatment if the facts of the case suggest that that is the indicated solution. The Court of Protection will consider “welfare in the widest sense…the nature of the medical treatment in question, what it involves…its prospects of success [and] what the outcome of that treatment for the patient is likely to be” when making decision in these most serious of cases.