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Commentary on Charles Foster’s ‘The rebirth of medical paternalism: an NHS Trust v Y’
  1. Derick T Wade
  1. OxINMAHR, Oxford Brookes University Faculty of Health and Life Sciences, Oxford, UK
  1. Correspondence to Dr Derick T Wade, OxINMAHR, Oxford Brookes University Faculty of Health and Life Sciences, Oxford OX3 0BP, UK; derick.wade{at}

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Professor Charles Foster1 argues that the recent decision by the Supreme Court2 on the process of making decisions about medical treatment in people who lack capacity due to a prolonged disorder of consciousness is fostering medical paternalism. He considers that the judgment shows ‘deference to the guidelines of various organisations’ and then that ‘The guidance has effectively become a definitive statement of the relevant obligations,’ concluding that ‘This usurps the function of the law.’

Healthcare teams make all decisions concerning medical care provided; no-one else can. Both the clinicians themselves, and any guidance provided to them, must comply with the Mental Capacity Act 2005.3 Lady Black’s judgment makes clear that ‘The basic protective structure is established by the MCA 2005’ (para 106) and that the associated Code of Practice4 ‘contains valuable guidance’ (para 107). She specifically highlights that the decision-maker must ensure that ‘account has been taken of the patient’s previously expressed wishes and those of people close to him, as well as the opinions of other medical personnel. The MCA 2005 requires this to happen, and is reinforced by the professional guidance available to doctors.’

The Act says:

He must consider, so far as is reasonably ascertainable—

  1. the person’s past and present wishes and feelings (and, in …

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