Law Report: Patient can refuse treatment: Re C: Family Division (Mr Justice Thorpe), 14 October 1993

Ying Hui Tan,Barrister
Thursday 14 October 1993 23:02 BST

A patient, who understands the nature, purpose and effects of proposed medical treatment, has the capacity to refuse that treatment, even if his general capacity is impaired by chronic mental illness. The High Court has jurisdiction to grant injunctive relief relating to future medical treatment.

Mr Justice Thorpe granted an injunction preventing Heatherwood Hospital, Ascot, from giving C an amputation now or in the future without C's express written consent. C, now aged 68, was serving a seven-year prison sentence in 1963 when he was diagnosed as mentally ill and transferred to Broadmoor.

In September 1993, he was diagnosed with gangrene in the right foot and it was considered C would die if the leg was not amputated below the knee and that C's chances of survival with conservative treatment would be no better than 15 per cent. C refused to consider amputation. C consented to more conservative treatment which was successful and the 85 per cent chance of imminent death predicted was averted. The hospital refused to give an undertaking that it would not amputate in any future circumstances.

C sought an injunction to restrain the hospital from amputating his right leg without his express written consent. Medical evidence was given that the condition of C's foot would again threaten C's life and that a below-knee amputation carried a 15 per cent mortality risk. C gave evidence expressing his rooted objection to amputation.

Richard Gordon and Craig Barlow (Scott-Moncrieff & Harbour, Brighton) for C; Peter Jackson (Official Solicitor) for the Official Solicitor; Adrian Hopkins (J Tickle & Co) for the hospital.

MR JUSTICE THORPE said that C was quite content to follow medical advice and to co-operate in treatment as long as his rejection of amputation was respected. C's rejection of amputation seemed to result from sincerely held conviction.

When considering the capacity that enabled an individual to refuse treatment, the question to be decided here was whether it had been established C's capacity was so reduced by his chronic mental illness that he did not sufficiently understand the nature, purpose and effects of the proposed amputation. The decision-making process could be analysed into three stages - first, comprehending and retaining the treatment information; second, believing it; and third, weighing the information, balancing risks and needs, to arrive at a choice. Applying that test, the presumption that C had the right of self-determination had not been displaced. Although his general capacity was impaired by schizophrenia, it had not been established that he did not sufficiently understand the nature, purpose and effects of the treatment he refused. He had understood and had arrived at a clear choice.

The High Court, exercising its inherent jurisdiction, could rule by way of injunction or declaration that an individual was capable of refusing or consenting to medical treatment and could determine the effect of a purported advance directive as to future treatment. Accordingly injunctive or declaratory relief could extend beyond present to future circumstances.

Ying Hui Tan, Barrister

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