Advance decision cases
The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.
|Case and summary||Date added||Categories|
|* Litigation capacity, bulimia Lancashire and South Cumbria NHS Foundation Trust v Q  EWCOP 6 — (1) The court-appointed expert had wrongly treated Mostyn J's decision in An NHS Trust v P  EWCOP 27 (that it is virtually impossible and would be completely illogical to say that someone has litigation capacity despite lacking subject matter capacity in medical treatment cases) as meaning the two tests were synonymous, and had wrongly confused the likely unwise instructions with lack of capacity to instruct a legal adviser: Q had capacity to litigate. (2) The judge also disagreed with the expert on capacity in relation to potassium treatment for hypokalaemia (a consequence of bulimia) and found it difficult to resist the conclusion that the independent expert's instinctive professional desire to save Q's life had allowed the "tail of welfare to wag the dog of capacity" (for example, the expert's opinion was that Q attributed little value to her own life and saw little of value in her future, but this did not necessarily mean that her ability to weigh life and death medical decisions in the balance was impaired; instead, it might represent a finely calibrated utilitarian calculation). Q had capacity despite her decisions being unwise and most likely to hasten her death. (3) For essentially the same reasons, she had had capacity when when she made an advance decision to refuse treatment.||2022‑03‑03 23:14:18||Judgment available on Bailii
|* Withdrawal of CANH; advance decision NHS Cumbria CCG v Rushton  EWCOP 41 — "This is an application regarding the proposed withdrawal of clinically assisted nutrition and hydration in respect of Mrs Jillian Rushton, who is now 85 years of age. Since sustaining a traumatic head injury in December 2015, Mrs Rushton has suffered from a prolonged period of disorder of consciousness. Insofar as a label is relevant, the consensus of medical opinion, in respect of which there is no dissent at all, is that she is in a persistent vegetative state (PVS). In their recent guidance, ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’, the Royal College of Physicians and the British Medical Association have noted that the importance of obtaining a precise and definitive diagnosis has reduced. It is recognised by the Courts and clinicians that drawing a firm distinction between vegetative state and minimally conscious state is frequently both artificial and unnecessary. In practice, when assessing best interests, information about the patient’s current condition and prognosis for functional recovery and the level of confidence with which these can be evaluated is invariably of greater importance than a precise diagnosis. ... It perhaps requires to be said, though in my view it should be regarded as axiomatic, that the medical profession must give these advanced decisions the utmost care, attention and scrutiny. I am confident the profession does but I regret to say that I do not think sufficient care and scrutiny took place here. The lesson is an obvious one and needs no amplification. Where advanced decisions have been drawn up and placed with GP records there is an onerous burden on the GP to ensure, wherever possible, that they are made available to clinicians in hospital. By this I mean a copy of the decision should be made available and placed within the hospital records with the objective that the document should follow the patient. It need hardly be said that it will rarely, if ever, be sufficient to summarise an advance decision in a telephone conversation. ... The family have ... made it clear to me that she would not have regarded her present situation as tolerable. Whilst I have no doubt that she would understand the commitment of her son, Tim and his profound resistance to letting her go, I have equally no doubt that she would want to be let go and I have no hesitation in concluding that it is my responsibility to respect this."||2019‑04‑05 21:53:04||2018 cases, Advance decision cases, Cases, Judgment available on Bailii, Medical treatment cases
|Nottinghamshire Healthcare NHS Trust v RC  EWHC 1317 (COP),  MHLO 22 — A detained patient (RC) was self-harming by cutting and had made an advance decision refusing blood transfusions. (1) RC had capacity to refuse blood transfusions and sometimes had capacity to lacerate himself. (2) The advance decision was valid and applicable. (3) The self-harming was a symptom or manifestation of mental disorder so a blood transfusion would be treatment under s63 MHA 1983. (4) Where the consequences of a decision not to impose s63 treatment may be life-threatening the Trust should apply to the High Court for declaratory relief and (just as with a decision to impose treatment) the hearing will involve a 'full merits review'. (5) It would be lawful to withhold blood transfusions despite the s63 power (indeed, the judge stated that given RC's current capacity and advance decision it would be 'an abuse of power ... even to think about imposing a blood transfusion' and that it 'would be a denial of a most basic freedom').||2014‑05‑02 00:58:58||2014 cases, Advance decision cases, Brief summary, Judgment available on Bailii, Transcript
|Nottinghamshire Healthcare NHS Trust v RC  EWHC 1136 (COP),  MHLO 20 — A detained patient with a severe personality disorder was self-harming by cutting and had to be mechanically restrained to prevent this. (1) He had made an advance decision, apparently with capacity to do so, refusing blood transfusions because of his religious beliefs: the court ruled that this was valid and applicable, but only on an interim basis since the document did not state that it was signed by the maker and the witness in each other's presence. (2) The Responsible Clinician accepted that a blood transfusion would be medical treatment for mental disorder under s63 MHA 1983, and therefore the advance decision could be overridden; however, because the patient's wishes were religious, she did not want to impose treatment: the Trust therefore sought the protection of a court declaration that her decision was lawful. (3) The court was unwilling to make the declaration, without hearing both sides of the argument, because of the importance of the issues (including the right to life under Article 2, freedom of religion under Article 9, and respect for private life, which includes bodily integrity, under Article 8). (4) The Official Solicitor was invited to attend a hearing the following day, the Trust was asked to facilitate the patient being directly represented and to encourage the father to attend, and the judge concluded that if there is an argument for the use of s63 it was very important for the court to hear it.||2014‑04‑27 21:20:43||2014 cases, Advance decision cases, Brief summary, Judgment available on Bailii, Transcript
|X Primary Care Trust v XB  EWHC 1390 (Fam),  MHLO 54 — "This matter concerns an application by the XPCT for declarations under s.26(4) of the Mental Capacity Act 2005 as to the validity of an advance decision made by XB on 2nd November 2011 that he wished, amongst other things, to have his ventilation removed in certain defined circumstances."||2012‑06‑21 20:56:06||2012 cases, Advance decision cases, Judgment available on Bailii, No summary, Transcript
|Re D; An NHS Trust v D  EWHC 885 (COP),  MHLO 47 — (1) P was in a permanent vegetative state so continued medical treatment is of no benefit to him because it is futile. (2) His letter refusing life-sustaining treatment did not comply with the MCA requirements for an advance decision so could not have been relied upon; however, had the evidence on PVS not been clear cut, the judge would have given P's previous wishes and feelings great weight.||2012‑05‑05 13:11:22||2012 cases, Advance decision cases, Best interests, Brief summary, Judgment available on Bailii, Transcript
The following 6 pages are in this category.
- NHS Cumbria CCG v Rushton (2018) EWCOP 41
- Nottinghamshire Healthcare NHS Trust v RC (2014) EWHC 1136 (COP), (2014) MHLO 20
- Nottinghamshire Healthcare NHS Trust v RC (2014) EWHC 1317 (COP), (2014) MHLO 22