Catholic Medical Quarterly Volume 66(1) February 2016
Ethics in Medicine
Must doctors treating a lonely, bi-polar, sick 73-year old with religious delusions with a severely infected leg, amputate his foot against his wishes in order to save his life?
Dr Adrian Treloar MRCPsych, FRCP, MRCGP
In a written judgement  handed down by the Court of Protection on the 7th November, the Court of Protection said 'No'. A man known as Mr B was a diabetic with a severely infected leg. The court heard from medical experts that his life could only have can only be saved if the leg was amputated below the knee. His foot was not only infected but putrefying and the bone itself had become infected (osteomyelitis). He was refusing all treatment, but allowed his dressings to be changed. Without amputation, he would die of the infection, possibly within a few days. Mr B had no one else in the world to care for him. “He has no next of kin. No one has ever visited him in hospital and no one ever will,” observed the judge.
"The issue in this case is whether it is lawful for the doctors treating (the pensioner), a 73-year-old gentleman with a severely infected leg, to amputate his foot against his wishes in order to save his life," said Mr Justice Jackson, in a written ruling on the case.
“His foot was not only infected but putrefying and the bone itself had become infected (osteomyelitis). He was refusing all treatment, but allowed his dressings to be changed.”
"Without the operation, the inevitable outcome is that he will shortly die, quite possibly within a few days. If he has the operation, he may live for a few years.
"(The pensioner) has a long-standing mental illness that deprives him of the capacity to make the decision for himself. The operation can therefore only be lawfully performed if it is in his best interests."
The judge said when a patient lacked the mental capacity to make decisions, it was of "great importance" to give "proper weight" to their wishes and feelings.
"(The pensioner) has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century ... He has no next of kin. No-one has ever visited him in hospital and no-one ever will. Yet he is a proud man who sees no reasons to prefer the views of others to his own," said Mr Justice Jackson.
"I am quite sure that it would not be in (his) best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no-one else would have to endure."
He went on: "There is a difference between fighting on someone's behalf and fighting them. Enforcing treatment in this case would surely be the latter”. He concluded that he had reached a "clear conclusion" that "enforced amputation would not be in (the pensioner's) best interests. The application, which was rightly brought, is accordingly dimissed”
This judgement finds that Mr B is not refusing treatment. He is incapable of that by vitue of his mental incapacity. But he is clearly strongly resisting treatment and this judgement includes consideration of that reality. Some may be worried that that this judgement denied the right to life to frail man who lacked capacity. But autonomy is a complex concept. On the one hand it is absolutely clear that it was accepted that this man lacked the mental capacity to decide upon treatment. He had a chronic mental illness, had been living in squalor and refusing medication including his diabetic medication while accepting dressings. We are told that “He experiences auditory hallucinations that tell him whether or not to take his medication:” to which Mr B responds "If the Lord says it's no, it's no." He also said that “because the Lord doesn't want him to have his leg taken off he is not doing it.” Mr B clearly hoped in his resurrection. He stated “I'm not afraid of dying, I know where I'm going. The angels have told me I am going to heaven. I have no regrets. It would be a better life than this”. And “I don't want an operation.”
"There is a difference between fighting on someone's
behalf and fighting them.
Enforcing treatment in this case would surely be the latter”
Justice Peter Jackson
The judge held that, if someone lacks capacity but strongly objects to and resists treatment that is one of the factors to be thought about in making a best interests decision. The practical aspects of imposing care may be (and often are) significant factors in deciding if that care can reasonably be done. And if it is true that he suffers and is alone and does not want to go it no a nursing home, these are all additional factors which will compromise the benefits of aggressive treatment. Further his (established) non-compliance with treatment (which has so far not been successfully mitigated by the health care provided) will necessarily also compromise the benefits of treatment that can be anticipated. In short, the effect of amputation may be so burdensome that the treatment is inappropriate.
Even when death is the likely outcome, to pursue treatment and preservation of life in the face of such challenges and resistance must surely be something about which we should be cautious.
What we do need to be able to avoid is the conclusion that someone who lacks capacity and will die if a treatment is not provided, must automatically have that treatment. To insist that because he lacked capacity life must be preserved at all costs would indeed be vitalist and would discriminate against the mentally incapacitated. The sum of all that is that the judgement may well be a very sound one albeit one that will have cost the patient his life. On the other hand, the official solicitor (acting for the patient) and also the Trust had both suggested that the treatment plan of amputation was reasonable. Perhaps it was. But at least on this occasion his interests were considered in some detail.
-  The honourable Mr Justice Peter Jackson Between: Wye Valley NHS
Trust v B (Applicant) and
Mr B (by his litigation friend, the Official Solicitor) Nov 2015 http://www.bailii.org/ew/cases/EWCOP/2015/60.html