0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

shift in Mental Capacity law towards a substituted judgment test

19 November 2015

Becky Fitzpatrick of Browne Jacobson acted for the healthcare provider in what represents a potential shift in Mental Capacity case law, the Court of Protection has ruled a patient's likely wishes and those of the family should be taken into account when considering the withdrawal of life-maintaining services. 

The judge ordered that as a matter of fact the patient (referred to as Mrs N) is in a minimally conscious state and that notwithstanding the fact that she has a level of awareness demonstrated by various clinical assessments (tracking & eye movement that is more than fleeting) it is in her best interests for clinically assisted artificial nutrition and hydration to be withdrawn (CANH).

This is on the basis that the law defines CANH as a form of invasive medical treatment. Therefore a “balance sheet” approach has to be taken in assessing the benefits and dis-benefits of such treatment continuing when deciding best interests, and great weight must be given to Mrs N's likely views and wishes. The judge was persuaded in this case by the family evidence that Mrs N. would not want such treatment to continue if she was able to speak for herself. 

This is the first English case where the Court has ruled that it is lawful for clinically assisted artificial nutrition and hydration to be withdrawn from a person in a Minimally Conscious State (that is, where they have some level of awareness).

On the facts of this case, the judge was persuaded by the family evidence that Mrs N. would not want such invasive treatment to continue if she was able to speak for herself. Following on from previous case law, the Judge was required to give great weight to her likely wishes and feelings when coming to a decision.

Given the very serious issues involved, this is a landmark ruling arguably representing a shift in mental capacity law towards a substituted judgment test rather than a straightforward best interests test when deciding these difficult issues.

This is a landmark ruling, as an English court has not previously agreed to such an order.

focus on...

Legal updates

Checklist for NHS organisations when commissioning external reviews

When commissioning external reviews, robust end-to-end Terms of Reference (ToR) should be agreed at the outset. Find out more here.

View

Legal updates

Health and care newsletter - July 2020

This health newsletter talks about the spread of COVID-19 across the world snd how it has created an unprecedented modern day health pandemic.

View

Legal updates

Managing the mental health act (MHA) during Covid-19

Useful and comprehensive guidance has been issued for practitioners assessing and managing patients detained under the Mental Health Act (“MHA”) during the Covid-19 pandemic.

View

Legal updates

The role of the independent sector in integrated care system (ICS) planning post Covid-19

The NHS Long-Term Plan created an ambition that every part of the country should be an integrated care system (ICS) by 2021.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up