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From A Fan

October 1, 2015

Needless to say, I’m a huge fan of Justice Peter Jackson.

Yesterday, a new Jackson P judgement was published (see the link below). The judgement deserves to be read from beginning to end. Like all of Justice Jackson’s judgements they are brilliant page turners. If he wasn’t a High Court judge, he should be writing formidable, edge of the seats, dramas.

The case is about Mr B, a 73 year old man and the best interest decision at stake was whether to amputate Mr B’s foot or to allow him his wish to die without the operation. Both the NHS Trust and the Official Solicitor were of the opinion that the operation should be carried out, despite Mr B’s objections. Mr B was deemed to lack mental capacity to make the decision for himself, hence the intervention of Justice Jackson.

Justice Jackson actually went and spent an afternoon with Mr B in the hospital and clearly enabled Mr B to open up in a way that he hadn’t been able to do with the other professionals. To visit P may seem an obvious thing to do but is very rare. I think it demonstrates a respect for the person at the heart of a case, that Justice Jackson took the time to meet Mr B.

Having weighed up all the factors, Justice Jackson decided to rule against the position of the NHS and the OS and held that Mr B’s “wishes and feelings” carry the weight they deserve. This is incredible on two counts. Not only is it very rare for a High Court judge to go against the view of both the professional witnesses and the Official Solicitor but even more importantly, it is rare for wishes and feelings to appear so substantially in a High Court judgement. Usually, and it was certainly the LA’s position with Steven, once the thorny issue of mental capacity has been got out of the way, it becomes very easy to just pay lip service to the person’s wished and feelings.

In Mr B’s case, the NHS Trust argued that Mr B’s deeply and long held beliefs were “religious delusions”. High fives for the way in which Justice Jackson responded to that: “His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his “fierce independence”, and it is this that is now, as he sees it, under attack”.  I find that incredible, that a person lacking capacity is given such respect as a human being. Once again, it is very rare. I had to put the judgement down at that point as I found it too unbearably moving to continue.

I could gush on but I’ll finish with the last two paragraphs of the judgement and ask the question: why isn’t this the norm? Why cannot this empathic and wise humanity not be a given in all services for people lacking capacity:

  1. “Mr B is on any view in the later stages of his life. His fortitude in the face of death, however he has come by it, would be the envy of many people in better mental health. He has gained the respect of those who are currently nursing him.
  2. I am quite sure that it would not be in Mr B’s best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter.”

http://www.bailii.org/ew/cases/EWCOP/2015/60.html

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From → Social Care

5 Comments
  1. This reminds me of a paragraph that I once read on the life of Mother Theresa.

    She had a hospice in calcutta for the very very poor. One day whilst visiting she came a cross a man who was dying and her instinct was to hold him until that moment arrived, and he said to her “I have spent my whole life on the streets living like an animal and now I will die in your arms like an angel”

    Wishes and feelings….So so important.

  2. conkers permalink

    think that last sentence of the quote “There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter.” sums it up.

  3. lisa permalink

    Very heartening to read. What a man. Thank you for posting this. I feel slightly better now.

  4. Sally permalink

    I am very glad the Judge took the trouble to have a long talk with the man concerned.
    I am afraid I have two reservations: Has this gentleman a treatable mental illness. that is, are his beliefs anything which has faded with treatment in the past? I once worked with a man who had removed his leg when delusional. At the time he had felt euphoric and that this was what God wanted.
    Does this gentleman have the capacity to understand what sort of death he would be faced with if his foot isn’t amputated? if he will have to deal with death by gangrene it will certainly not be like floating off.
    .If its no and yes then I agree with the Judge.

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