The implications of the Epsom v Townsend court ruling

I have written some comments on a fairly-recent court ruling, the Epsom v Townsend case, which was ruled on by Lord Justice Baker. My comments centre on one of LJ Baker’s conclusions, which is:

69. Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life-sustaining treatment, must be taken in the patient’s best interests. There is no carve out for “clinical decisions”.

That is a combination of what we are told in MCA 1(5), which is

An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

and ‘There is no carve out for “clinical decisions”.’

I’ll start with a quick comment: we need to decide whether Lord Justice Baker is implying that MCA best-interests determinations can, or cannot, occur within the making of ‘clinical decisions’. I think, as I state in the PDF, that there DOES need to be more clarity as to what ‘a clinical decision’ is, and I consider that the instruction to doctors must be:

‘While deciding on the options which will be offered during the care and treatment of a mentally incapacitated adult, clinicians MUST NOT consider MCA Best Interests.’

I will also point out, in passing, that section 1(5) is potentially misleading, and Lord Justice Baker’s 69 is even more misleading, because if an Advance Decision to Refuse Treatment is applicable, then best-interests determinations must not be made.

Lord Justice Baker’s sentence ‘somewhat loses’ the ‘under this Act’ part of MCA 1(5), and we also need to analyse which decisions that affect the care and treatment of a mentally incapacitated adult, fall outside of the MCA.

Consider a capacitous patient, or a relative when the patient is incapacitous, asking a doctor ‘I’ve read about an operation that seems to be much better than the operation you have described – why isn’t the other operation being offered?’. A perfectly-legitimate answer could be ‘I agree, it is a better operation – but this hospital doesn’t have a clinical team who are competent to perform that operation’. Ditto with ‘… why am I not being offered the drug Wondercure?’ and ‘Because the NHS has decided that Wondercure is too expensive for the NHS’.

We need to be clear about which decisions are NOT MCA best-interests decisions, even though those decisions do affect the care and treatment of incapacitous individuals. And, we need to check that when MCA best-interests determinations are legally required, that those determinations are taking place, and they are being made correctly. As I wrote on page 8:

We do want to make sure that if they should be carried out, best-interests determinations are carried out, and are carried out correctly;

I then pointed out this:

Now, if we can successfully explain to layfolk what MCA Best Interests is and means (see pages 10 and 11 of this PDF), then the family and friends of an incapacitous person who are involved during best-interests discussions, are in a position to check that best interests is being applied correctly.

If anyone wants more detail, please look at the PDF you can download.