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04 July 2014 / Charles Foster
Issue: 7613 / Categories: Opinion
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Game of life

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Advance decisions for incapacitous patients haven’t been let in through the back door, says Charles Foster

What do you do when it’s obvious that an incapacitous patient would, had they capacity, refuse life-sustaining treatment? Can it be said that it is nonetheless in their best interests to have the treatment?

No, said Hayden J, in a recent judgment in the Court of Protection: Sheffield Teaching Hospitals NHS Foundation Trust v TH and TR [2014] EWCOP 4, [2014] All ER (D) 209 (May).

TH was 52, and in a minimally conscious state. Although there was no definitive determination of the medical facts (that determination was adjourned), the prognosis seemed to be poor. At best, it seemed, there might be a small increase in the level of consciousness—and even that was rather unlikely. He was, and would remain, legally incapacitous.

Should life-sustaining treatment be given?

It is important to translate that question into the language used by Lady Hale in Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67, [2014] 1 All ER 573.

Would

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