Making decisions for a loved one or friend who has lost capacity is a very difficult thing to do. You know that you want to make the best decision for them, but you also want to make a decision that they would have agreed with if they were able to care for themselves.
In the recent case of Manchester University NHS Foundation Trust v DE the parties found themselves conflicted between these two points. The patient (P) had autism and mild learning difficulties. P was also a Jehovah’s witness. P was seriously injured in a fall and was deemed incapable of consenting to treatment.
The NHS trust made an application to the Court for an Order that would allow them to give P blood products if it became clinically necessary. Without this permission, there was a 50% chance that P would be at risk of dying while being treated for her injury.
The Court determined that the most important factor was what P’s wishes and feelings would be if P had capacity. As such, the Court spent significant time and effort establishing exactly this. They found that, while P would say that they were a Jehovah’s witness, they had no deeper understanding of what this meant, and that they did not strongly identify as such. The Court stated that P’s wishes would have to be clear and unambiguous in life threatening cases, and gave permission for the NHS trust to administer blood products if clinically necessary.
The legal system places great weight on what people want, even if they have lost capacity. If you are concerned about the capacity issues of someone you know, or would like to ensure that your wishes and feelings are recorded properly for your own future, please get in touch with Daniel McGurk on 01865 244661.