Health Adviser: Mental capacity, serious medical treatment - DAC Beachcroft

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Health Adviser: Mental capacity, serious medical treatment

Published 21 February 2014


The Trust applied to the Court for a declaration that JB lacked capacity to make a decision about serious medical treatment (amputation of part of her leg). During the hearing, agreement was reached by the Trust and the expert vascular surgeon instructed by the Official Solicitor that it was in JB's best interests to undergo a below knee amputation. JB had consistently refused surgical treatment for a gangrenous foot over a period of months resulting in the foot auto-amputating. Conservative treatment had been provided but there was concern that, without proper medical treatment, her life was at risk from infection and sepsis. Shortly before proceedings were issued she appeared to consent to surgical intervention, but there was serious doubt as to her capacity and ability to understand the options for treatment.


The Judge concluded that JB suffered from paranoid schizophrenia, but he was not satisfied that it had been established that she lacked the capacity to make a decision about the proposed surgery for herself. He rejected the evidence of JB's own psychiatrist, preferring the evidence of the two experts instructed by the Official Solicitor (a psychiatrist and vascular surgeon), that JB's views had evolved over time in a way that was consistent with her mental state.


This was a difficult and rare case. Having confirmed that it was right for the Trust to bring the case before him, the Judge sought to confirm the legal principles underpinning issues of capacity, and how clinicians should apply these in practice. He gave some useful guidance to clinicians on assessment of mental capacity, namely:

  • Everyone capable of making a decision has an absolute right to accept of refuse medical treatment, regardless of the wisdom or consequences of the decision;
  • An individual is not required to understand every last piece of information about their situation and options;
  • Common strategies for dealing with unpalatable dilemmas - such as indecision, avoidance or vacillation - are not to be confused with incapacity;
  • More should not be asked of an individual whose capacity is questioned than of those whose capacity is undoubted;
  • A tendency as part of an ongoing mental illness to be uncommunicative or avoidant and to minimise the risks of taking no action are understandable human ways of dealing with a predicament and may not amount to incapacity.

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