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Report No. 196

Re C: (adult: refusal of medical treatment): 1994(1) All ER 819: (competency of patient).

This case was decided by Thorpe J and lays down the C-Test. The patient was 68 years old and was suffering from schizophrenia, developed gangrene and his leg below knee, required to be operated. C refused amputation. The Court considered whether his capacity to take a decision was impaired by schizophrenia and that the presumption of lack of capacity was not displaced and hence his refusal was not binding. In fact, we propose to put these words into the definition of 'incompetent patient'.

Frenchay Health Care NHS Trust vs. S: 1994(2) All ER 403 (CA) was a case where S a healthy adult took a drug overdose which resulted in acute and extreme brain damage. Medical treatment was of no avail. He was fed through a nasogastric tube, through the stomach. At one stage that was removed and re-insertion was likely to result in his death. The hospital moved the Court. The Judge declared that in the patient's interests, the tube should not be re-inserted. The same was affirmed by the Court of Appeal.

Lord Bingham MR held that the Court had to determine whether discontinuance of the tube was in the best interests of the patient. Though the Court had power to review the medical opinion and was not bound to accept it in all cases if circumstances placed before it did not warrant it, the Court would be reluctant to place those treating the patient in a position of having to carry out treatment which they considered to be contrary to the patient's best interests, unless the Court had real doubt about the reliability, bona fide or correctness of the medical opinion in question. The Court followed Airedale.

In re Y (Mental capacity: bone marrow Transplant) 1997(2) WLR 556, the question was whether the patient (plaintiff) a 25 year old suffering from cancer, could be given bone marrow transplant from her sister (defendant) who was severely handicapped both mentally and physically. The plaintiff applied to the Court for transplant of bone marrow from her sister.

Connel J observed initially that it was first necessary to consider what was in the best interests of defendant. The fact that the process would benefit plaintiff was irrelevant, unless such transplant was also in the best interests of the defendant.

But then, if the plaintiff daughte.- suffering from cance.- died for want of bone marrow transplant, the death would have an adverse affect on their mother who was caring for both daughters and then the mother's ability to take care of disabled defendant would also be seriously affected. The defendant would benefit, if the plaintiff survived, because of their emotional, psychological and social benefit. The disadvantages to the defendant otherwise was small.

After referring to Airedale and Canan vs. Bosze L (1990) 566 NE 2d. 1319 (an American case relating to bone marrow harvesting decided by the Supreme Court of Illinois), the Court permitted the bone-marrow transplant. In the American case too, the donor and the donee were brother and sister. Connel J held that the transplant was good for all three of them, physically and psychologically.

In Re MB (Medical Treatment): 1997 (2) FLR 426 the issue was whether caesarean operation should be performed on a pregnant lady who was refusing blood on account of 'fear of needles'. Butter-Sloss LJ speaking for the Court of Appeal held that where the patient lacked mental capacity and it was in the best interests of the patient, the patient's refusal to treatment was not binding. The patient here was suffering from a needle phobia and was not competent to take a decision and her refusal was not binding. The Court applied the C-Test laid down by Thorpe J in Re C (Refusal of Medical Treatment). 1994(1) All ER 819 to decide about her competency.

Furthermore, since the mother (i.e. the pregnant lady) and the father of the child in the womb wanted that the child be born and the mother was likely to suffer long term damage if the child was born handicapped or dead, it was decided that it was in her best interests that caesarean operation be performed. When the patient did not have the requisite capacity, the doctors were free to decide what was in the patient's best interests.

The Court also held that the best interests were not necessarily medical but they also included the emotional and all other welfare issues.

In Norfolk and Norwich Health Care (NHS) Trust vs. W (1996(2) FLR 613, the lady who was under psychiatric treatment was pregnant but would deny she was pregnant. The Court applied the C-Test. Johnson J held that though she was not suffering from any mental disorder, within the meaning of the statute, she lacked the mental competence to make a decision and the Court permitted forceps delivery or caesarean as it was, according to doctors, in her best interests.

In Re D (Medical Treatment): 1998(2) FLR 10, the defendant, a man of 49 years, suffered from longstanding psychiatric illness and though there was renal failure, haemodialysis was not favoured by the doctors. The Court held that notwithstanding the defendant's inability to consent or to refuse consent to medical treatment, it was lawful that haemodialysis was not given in the best interests of the patient.

Re L: (Medical Treatment: Gillick Competency) 1998(2) FLR 810, the girl was 14 years old in life threatening condition, and she rejected blood transfusion as she was a Jehovah's witness. The Court did not go by her rejection of blood transfusion as it was only a 'view' of the patient and 'not the constructive formulation of an opinion' on her part which would occur by way of adult experience. She was still a child. She was not given all information to understand the seriousness of her condition. Hence her refusal was not binding and it was in her interests to be given blood transfusion.

In Re A (Male Sterilisation): 2000(1) FLR 55, Butter-Sloss LJ stated that the 'best interests encompass medical, emotional and all other welfare issues'. It was not limited to 'medical' interests'. This principle was applied by Ward LJ in the Siamese Twins Case: Re A (Children) 2000 EW CA 254 where the question was whether the twins be separated by surgery to save one of them while, on such separation, the other would die immediately.

In that case, separation was permitted by the Court. Parents' wishes were subordinate to the best interests of the child. (There was discussion in this case as to how far the parents' views should be considered). The broad meaning of 'best interests' as stated above was also reiterated in Simms Vs. An NHS Trust: 2002. EW HC 2734, in which they referred to Re MB: 1997(2) FLN 426.

NHS Trust vs. D: 2003 EWHC 2793, it was held that 'where the issues of capacity and best interests are clear and beyond doubt, an application to the Court is not necessary'. Dame Elizabeth Butler-Sloss referred to the 'best interests', sanctity of life and to Justice Thorpe's dictum in Re A: 2000(1) FLR 549 as to how the Court should prepare a balance sheet of the best interests of a patient, the potential gains and losses etc.

These principles as to how the Court should prepare a balance sheet of the best interests as laid down by Thorpe J in Re A were again applied by Charles J in NHS Trust vs. T: 2004 EW HC 1279. He also quoted Munby J in A vs. A Health Authority 2002 (1) FLR 481 that adults' best interests involve a welfare appraisal in the widest sense of taking into account, where appropriate, a wide range of ethical, social, emotional and welfare consideration.

In Portsmouth NHS Trust vs. Wyatt: 2004 EWHC 2247 Hedley J observed that the child was born after 26 weeks gestation and was weighing 1 lb., and was placed in an incubator. She required oxygen. Kidneys were deteriorating. Parents wanted treatment to be given. The Court gave certain directions to the doctors as regards treatment. In that context, it observed: "infinite variety of the human considerations never cease to surprise and it is that fact that defeats any attempt to be more precise in a definition of best-interests". He, however, referred to Re A 2000(1) FLR 549 that 'best interests' include medical, emotional and other interests.

In GMC vs. Burke 2005 EWCA (CA) 1003 (14) Lord Philips of Worth Matravers stated that autonomy and self-determination do not entitle the patient to insist on receiving a particular medical treatment regardless of the nature of the treatment. The Court of Appeal approved Munby J's observations in the Judgment under appeal but took exception to two sentences in regard to which the Court of Appeal stated thus:

"The suggestion that the touch-stone of 'best interests' is the intolerability of continued life has, understandably given rise to concern. The test is whether it is in the best interests of the patient to provide or continue ANH must depend upon the particular circumstances." It said:

"We do not think it possible to attempt to define what is in the best interests of a patient by a right test, applicable to all circumstances."

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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