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The rebirth of medical paternalism: An NHS Trust v Y
  1. Charles Foster
  1. Faculty of Law, University of Oxford, Oxford OX1 3UL, UK
  1. Correspondence to Professor Charles Foster, Faculty of Law, University of Oxford, Oxford OX1 3UL,UK; Charles.Foster{at}gtc.ox.ac.uk

Abstract

Over the last quarter of a century, English medical law has taken an increasingly firm stand against medical paternalism. This is exemplified by cases such as Bolitho v City and Hackney Health Authority, Chester v Afshar, and Montgomery v Lanarkshire Health Board. In relation to decision-making on behalf of incapacitous adults, the actuating principle of the Mental Capacity Act 2005 is respect for patient autonomy. The only lawful acts in relation to an incapacitous person are acts which are in the best interests of that person. The 2005 Act requires a holistic assessment of best interests. Best interests are wider than ‘medical best interests’. The 2018 judgment of the Supreme Court in An NHS Trust v Y (which concerned the question of whether a court needed to authorise the withdrawal of life-sustaining clinically administered nutrition/hydration (CANH) from patients in prolonged disorders of consciousness (PDOC)) risks reviving medical paternalism. The judgment, in its uncritical endorsement of guidelines from various medical organisations, may lend inappropriate authority to medical judgments of best interests and silence or render impotent non-medical contributions to the debate about best interests—so frustrating the 2005 Act. To minimise these dangers, a system of meditation should be instituted whenever it is proposed to withdraw (at least) life-sustaining CANH from (at least) patients with PDOC, and there needs to be a guarantee of access to the courts for families, carers and others who wish to challenge medical conclusions about withdrawal. This would entail proper public funding for such challenges.

  • autonomy
  • capacity
  • clinical ethics
  • decision-making
  • end of life care

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Footnotes

  • Contributors I am the sole author.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests The author appeared as counsel for an Intervenor, ‘Care Not Killing’ in the Supreme Court litigation of An NHS Trust v Y.

  • Provenance and peer review Commissioned; externally peer reviewed.

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