ISSUE 54 EWJ web - Journal - Page 22
circumstances in which section 5 either will not or may
not provide a defence. If section 5 does not provide a
defence, then an application to the Court of Protection will be required.” Paragraphs 8 and 9, relied
upon in the Serjeant’s Inn blog, are therefore concerned with disputes about capacity or best interests,
not about clinical appropriateness. If treating clinicians
are not willing to offer a particular treatment on the
grounds of clinical appropriateness, that does not become a best interests decision just by virtue of the fact
that the patient lacks capacity to make their own
medical treatment decisions.
When to bring an application to court (and who
should bring it) will be likely to remain an issue that is
regularly revisited. But we do suggest that it is very
important that an urban myth is not allowed to develop (in the same way that it did about CANH withdrawal cases following Bland, not dispelled until 2018
in NHS Trust v Y) about what the law actually requires.
To the extent that the decision in EUP’s case has muddied the waters, we hope that it is possible for this to
be resolved judicially as soon as possible.
[1] Recommendation 1.10.8. Their decision aid on
enteral feeding in advanced dementia explains that
“Studies have looked at the possible benefits from tube
feeding for people living with severe dementia. These
studies found no good evidence that people who had
tube feeding lived any longer than people who did
not. There was also no good evidence that tube feeding made any difference to people’s weight or improved how well-nourished they were.”
And finally, being pedantic, Aintree v James was a case
where the treating Trust brought the application to determine what was in Mr James’ best interests: in other
words (and whether rightly or wrongly) the Trust
brought the application on the basis that it was in principle open to the court to find that their treating clinicians were wrong about where his best interests lay. We
say ‘rightly or wrongly,’ because it is difficult to escape
the impression that, in reality, what the Trust wanted to
say was that treatment escalation in Mr James’ case was
inappropriate.[3] However, it is hardly surprising that,
the case having been brought on a best interests basis,
the Court of Protection was willing to entertain it. In
other reported cases, we note the court itself has expressed disquiet about being asked to make a purported ‘best interests’ determination when the option of
continued treatment is one that no clinician is putting
forward – see for example An NHS Trust v L & Ors
[2012] EWHC 4313 (Fam) in which Moylan J noted
“Does the evidence establish that there are treatment
options? If it does not, I question whether the Court is
entitled to assume that there are.”
[2] Which as Hayden J reminded himself is not a
source of law.
[3] The confusion in this case, and the gaps that
opened up in consequence between the courts and
clinicians, were discussed in a article we co-wrote with
Vikram Sachdeva as long ago as 2014 in the latelamented Elder Law Journal: The MCA in the
Supreme Court: Reflections on Aintree v James (available on request).
Author: Alex Ruck Keene
Alex is a barrister, writer and educator, and creator of
the website www.mclap.org.uk
Mr Saurabh Sinha
Adult & Paediatric Neurosurgeon
FFSTEd, CCT (Neurosurgery), FRCSEd (NeuroSurg),
FRCS (Ed), M.A.(Oxon), BMBCh(Oxon), BA(Oxon) in Physiological Sciences.
Mr Saurabh Sinha is an adult and paediatric neurosurgeon based in Sheffield.
He is one of the few neurosurgeons qualified in paediatric endoscopic base skull
surgery.
Mr Sinha has over 13 years of experience in the clinical and operative
management of elective and emergency neurosurgical and spinal pathologies.
Subspecialising in oncological, skull base and pituitary surgery with an expertise
in endoscopic skull base and neuro-endoscopic surgery. He set up the endoscopic
pituitary and skull base service, which has improved overall outcomes and reduced
length of stay of patients undergoing pituitary surgery receiving referrals from
across the UK.
He has special interests in;
Paediatric Neurosurgery
Endoscopic Pituitary and Skull Base Surgery
Intraventricular Neuro-endoscopy
Mr Sinha is widely published and is an Associate Editor of British Journal of
Neurosurgery. He also has extensive research experience and undertakes local
and national audits.
Contact
Tel: 07813 033813
Email: machonbankml@gmail.comAddress: 30 Machon Bank, Sheffield, S7 1GP
Area of work: Yorkshire and Nationwide
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