e of poor practice, and active resistance from some quarters, the court could also make clear that continued provision of medical treatment when it is not in someone’s best interests is an assault, and that clinicians will not be able to rely on the defence in s.5 of the Mental Capacity Act 2005 – meaning that there is a risk to them and to their organisations of claims for damages.
reatment for patients who are unable to decide for themselves. In England and Wales, they haven’t, or only extremely rarely, been called as expert witnesses. Yet ethics is obviously central to the work of the Court of Protection. And if this hearing is anything to go by, if judges or barristers were willing to call on them, it seems that there could be a place for an ethicist in the courtroom.
By Jenny Kitzinger, 23rd June 2021 Hearings in the Court of Protection often bring crucial issues into sharp relief in a vivid, poignant and intellectually rigorous way. This was certainly so in the hearing I observed last week: Case No. 1375980T on 10 June 2021. It concerned GU, a 70-year-old man who sustained a severe anoxic brain injury in AprilContinue reading “Clinically-assisted nutrition and hydration: Decisions that cannot be ignored or delayed”
“If organisations like Christian Concern are willing to spend time and money on conducting their ‘pro-life’ campaigns via courtroom litigation, and can find experts willing to act for them, there may be very little the Court of Protection can do to prevent them.”
“So, I would not only allow but would actively encourage video recording, especially by family members, and especially of observed behaviours the family believe may not have been seen or noticed by clinical observers. If this is openly discussed at an early stage, the clinical team can, at the same time, point out that any recorded material must not be disseminated beyond those people who have a legitimate personal relationship with the patient”
“The dispute about RS’s treatment spread well beyond his treating team and his family. It spilled out from the bedside to the courts and into the public domain and then back again through the legal system (including the Court of Protection, the Court of Appeal, and the European Court of Human Rights). There were many powerful forces at play, and a huge clash of religious and cultural values. The persuasive power of video was a crucial lightening rod in how the story played out.”
I joined the hearing expecting to come out of it with an increased understanding and experience of the law in this area, which would complement my studies. However, to my surprise, I left with an increased personal awareness of the importance discussing these often ‘taboo’ and topical subjects.