‘The right to decide whether or not to consent to medical treatment is one of the most important rights guaranteed by law. Few decisions are as significant as the decision about whether to have major surgery. For the doctors, it can be difficult to know what recommendation to make. For the patient, the decision about whether to accept or reject medical advice involves weighing up the risks and benefits according to the patient's own system of values against a background where diagnosis and prognosis are rarely certain, even for the doctors. Such decisions are intensely personal. They are taken in stressful circumstances. There are no right or wrong answers. The freedom to choose for oneself is a part of what it means to be a human being’
The above quote comes from the case of Heart of England Trust NHS Trust v JB (by her litigation friend the Official Solicitor)  EWHC 342 which was recently heard by Mr Justice Peter Jackson within the Court of Protection in February 2014. The case concerned the highly difficult area of consent to potentially life-saving medical treatment.
The fact of the case were as follows; a woman in her 60s, known as JB who suffered from paranoid schizophrenia and a number of physical ailments exacerbated by smoking developed an ulcer on her foot in May 2013. This deteriorated to the point where her foot became gangrenous and she was admitted to hospital on New Years Eve. The foot eventually mummified and detached from her leg leaving an unresolved wound. Doctors wished to amputate JB's leg in order to prevent the spread of potentially fatal gangrene. However JB did not wish to have the operation and her opinion towards any procedure on her leg fluctuated.
As a result of JB's indecision there was a dispute as to JB's capacity to make the decision. A number of assessments of JB's capacity had come to conflicting conclusions about her ability to understand the decision to amputate.
As a result of this and the potentially life-threatening nature of the situation, the NHS Trust went to the Court of Protection seeking a declaration that JB lacked capacity to make this decision and that it was in her best interests to have her leg amputated.
Mr Justice Jackson held that while JB was suffering from a 'disturbance in the functioning of her mind' she maintained capacity to make her own decisions in relation to medical treatment.
This case highlights the need for decisions about capacity to be time and decision specific and the fact that the making of an unwise decision does not automatically mean that a person lacks capacity.
The court gave a great deal of weight to s3 of the Mental Capacity Act 2005 and it's codes of practice which highlight that the main issue in such cases is whether the person in question is able to understand the nature, purpose and effects of the proposed treatment.
Mr Justice Jackson held that what is needed is a broad and general understanding as would be expected of the population at large and that common coping strategies for dealing with unpalatable dilemmas, such as indecision or avoidance should not be confused with a lack of capacity.
The Court of Protection is a specialist Court safeguarding the rights of those who lack mental capacity or are vulnerable in making decisions. If you require advice in respect of any issues which may require the Court of Protection to intervene, then our team is able to provide specialist legal advice, representation and guidance through the Court of Protection process.
By Emma McClure, a graduate paralegal in the Court of Protection disputes team