Intended for healthcare professionals

Rapid response to:


Woman who was granted right to refuse kidney dialysis dies

BMJ 2015; 351 doi: (Published 03 December 2015) Cite this as: BMJ 2015;351:h6575

Rapid Response:

Re: Woman who was granted right to refuse kidney dialysis dies

Most court rulings about the Mental Capacity Act seem to involve the application of section 4 - in other words, they are about the law for mentally-incapable patients. But this ruling by Mr Justice MacDonald, is in essence concerned with mentally-capable patients: as he explains in his section 24, the relevant sections of the Act are sections 1 to 3. In that context, the parts of the ruling which strike me as the most interesting and significant, are the following.

Mr Justice MacDonald reproduces sections 1 to 3 of the MCA in his section 24: he points at the Act itself, and not at the MCA's Code of Practice.

When he explains the patient's right to make her own decision(s), for example in section 97 of his ruling, Mr Justice MacDonald nowhere mentions 'best interests'. Many clinical authors, tend to write something such as 'a mentally-capable patient decides what is in his own best interests'. I find this very unhelpful - it is section 4 of the MCA, covering incapacity, which uses the concept of best interests - and I find the wording used by Mr Justice MacDonald much clearer: 'others in society may consider C's decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity ... C has capacity to decide whether or not to accept treatment [so] C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society's expectation of what constitutes the
'normal' decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign.'

Mr Justice MacDonald also seems to share my own reservations about the utility of section 2(1) of the MCA, which he avoids considering after using section 3 to decide the patient is capable: he writes in his section 93 'Having found that C is not a person unable to make a decision for herself for the purposes of s 3(1) it is not necessary for me to go on to consider the so called 'diagnostic test'. It is right to record that, as I observed at the conclusion of the hearing, had I been satisfied that C was unable to use and weigh information in the manner contended for by the Trust, I believe I would have had difficulty in deciding that this inability was, on the balance of probabilities, because of an impairment of, or a disturbance in the functioning of, the mind or brain ... more importantly, with regard to the question of causation, and in particular whether what was being seen might be the operation of a personality disorder or simply the thought processes of a strong willed, stubborn individual with unpalatable and highly egocentric views the evidence was likewise somewhat equivocal.'

As mentally-capable individuals, we hold a range of different views, values and indeed 'thinking processes' - so what, exactly, is a 'disturbed mind', disturbed away from ? If we were compasses, and our needles were all supposed to point due north, then any which pointed in other directions 'would be disturbed': but our 'needles' are allowed to point in many directions, depending on our individuality. It is easy to see that a drunken man, who is incapable of standing, and who is communicating in grunts, is almost certainly mentally incapable: but it is much less obvious, how a person who is coherent, but is not expressing 'a typical view', is to be proven mentally-incapable.

The other point, which I think is made more widely in the ruling, is the difficulty presented by section 3(1)(c) of the Act - 'to use or weigh that information as part of the process of making the decision'. If you wish to find Mr Justice MacDonald's discussions relating to section 3(1)(c), you need to look for the [many] sections of the ruling where the word 'weigh' appears.

Mr Justice MacDonald spends time analysing the explanations which the patient offered for her refusals of the offered treatment, but section 3 of the MCA describes the process of Informed Consent: the information flows from clinicians to the patient, and the decision is then expressed by the patient. There is nothing in section 3, which suggests that a patient need explain how the decision was reached. If the clinicians think the decision is wrong, they can certainly offer further clinical information, and the clinicians can check that prognoses are understood by the patient: but the patient is not, so far as I can see in the Act, required to give any type of explanation about 'how I arrived at my decision'.

Some clinical readers might object to my previous paragraph, thinking 'if that is correct, we cannot assess mental capacity !': my response is that I believe it is correct, and I have no idea how, as it is true, anything other than very obvious mental incapacity is to be proven. I'm not sure that Mr Justice MacDonald knows the answer to that either - as he points out in his section 64 'On behalf of the Trust Mr Horne concedes, very properly, that this is a finely balanced case that sits close to the border that runs between an individual with capacity making an unwise decision and an individual lacking capacity to make the decision in question.'

I think that border, might be rather difficult to discern.

Mike Stone

Competing interests: No competing interests

04 December 2015
Michael H Stone
Retired Non Clinical
None Private Individual
Coventry CV2 4HN