Trevor – scenario for training

Mental Capacity Act workbook

Commissioned by, and hosted here on the MCA Directory on behalf of, the members of the NHS Eastern Region Safeguarding Adult Forum facilitated by Eleanor Sherwen & Sarah Robinson.

View here online or order a DVD or workbook

Learning outcomes

For participants to recognise that

Trevor’s story

Trevor is 82, he lives alone, has two children. Trevor has always been very active and was quite sporty when he was younger. He has lived on his own since the death of his wife. He is fiercely independent and reluctant to receive any help around the home even from his own children. His daughter, Gemma, lives about an hour and half away by car from him but visits when she can. He still keeps an old dog and struggles to look after it and take it for walks. Trevor had a bad fall about 2 months ago when he was trying to repair a wall and cut his leg deeply. He didn't seek treatment at the time, he now has a serious infection and he has contracted gangrene.

He has some heart failure, increasing signs of dementia and memory loss. There have been concerning episodes of risky behaviour associated with his increasing forgetfulness.

Current decision making issues for the professionals involved

Trevor has been admitted to hospital following his daughter contacting his GP. His health has rapidly deteriorated due to the infection in his leg. He is now receiving an intravenous antibiotic treatment. Mr Aslam the consulting surgeon feels that Trevor is not fully appreciating the gravity of his situation as he is refusing surgery. The surgeon is concerned about Trevor’s fluctuating capacity. There is no Lasting Power of Attorney in place for health and welfare. He is now consulting Trevor's daughter Gemma, to see if he can find out more background information that will help with understanding his initial assessment of Trevor’s’ mental capacity and give information that may be needed if a best interests decision is to be made.

The ethical decision

The dilemma for the doctor is whether Trevor has capacity: if he does have capacity then he can’t treat him without his consent. The preferred treatment option is surgery, without which, Trevor may die. If the decision is reached that he doesn't have capacity, how far should the doctor take into account Trevor’s past and present wishes i.e. he would not want surgery and couldn't cope with a disability?

Cases from the court of protection

Case B this was in relation to a gentleman who needed an amputation of his foot because of a serious infection. He lacked capacity and had a history of mental illness. Decision: not in best interests to have surgery

Wye Valley NHS Trust and Mr. B (by his litigation friend, the Official Solicitor) [2015] EWCOP 60, that came before the Court of Protection the judge’s decision was that the person did not have capacity and then went onto provide a detailed analysis in a “balance sheet” approach.

He concluded that it would not be in the gentleman’s best interests because:

Para 45 “I am quite sure that it would not be in Mr. B's 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. There is a difference between fighting on someone's behalf and just fighting them. Enforcing treatment in this case would surely be the latter”.

Transcript of Case B

Commentary on Case B

Case two Ms. Ab, a woman who lacked capacity in relation to surgery i.e. an above the knee amputation and had mental health issues. Best interests decision: surgery.

Surrey and Sussex Healthcare NHS Trust and Ms. AB [2015] EWCOP 50, the judge concluded that the woman lacked capacity about her need for an amputation above the knee; a detailed analysis of the best interests was made. Para 60-62 he concluded that she should have the medical treatment of an above knee amputation.

“I am acutely conscious that to give permission for the amputation of Ms. AB's left leg contrary to her expressed wishes is an extremely serious step to take. I have given this matter the most careful and earnest consideration. I must only grant permission if I am satisfied that no other course will save Ms. AB's life and avert her imminent death. In all of those circumstances and balancing the disadvantages of the proposed surgery (paragraphs (a)-(d)) with the advantages (paragraphs (e)-(h) above), I am completely satisfied that, very sadly, the only best interests decision I can make is to give permission for the above knee amputation of Ms. AB's left leg to be undertaken. I approve the use of reasonable restraint before, during and subsequent to surgery as is necessary to safeguard and protect her, including sedation. Further, I authorise the deprivation of her liberty insofar as it is necessary to perform the procedure.”

Transcript of Case

Commentary on Case AB