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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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  • Contributors DTW wrote the article.

  • Funding This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests DTW is closely involved in the development of guidance on this matter being undertaken by the British Medical Association, the Royal College of Physicians, and the General Medical Council, but not a member of the working group. DTW attends the public meetings, and comments on proposals put out for consultation. DTW is often asked to see patients with a prolonged loss of mental capacity and needing a decision on continuing gastrostomy feeding or other treatments, as a second opinion and/or as part of the legal process. DTW is paid sometimes, but not always. DTW speaks and teaches on this clinical topic, and writes about it. DTW is developing (with many others) an application for money to devise a method to assess awareness and responsiveness in people who are in a prolonged disorder of consciousness.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; internally peer reviewed.

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