A Practical Guide to the Law of Medical Treatment Decisions – Second Edition

Decisions about medical treatment can be about life and death, such as withdrawal of treatment or (not) providing CPR. Or about quality of life, liberty and independence, which can be just as important. But the legal (and ethical) framework around these decisions is often misunderstood, leading to distress and disputes at the very worst of times. We have seen this in a few very high-profile cases, but there will have been untold others in private. Should a patient always get what they want, or does “doctor know best”? When a patient cannot make a decision for themselves, who gets to decide, and how should these decisions be made? What is the role of so-called “next of kin” (there’s actually no such thing)? Can parents insist on treatment for a baby when doctors think it futile? How are disputes in this context resolved and how are they avoided? How can we act now to control what happens to us in future, when we may not be able to decide for ourselves? This is a practical guide to the law and how it really works, written to be accessible not only for lawyers, but also for clinicians, patients and anyone concerned about them. This second edition brings the text up to date with significant recent cases on when disputes need to go to court and the impact of delay; fluctuating capacity and anticipatory declarations; insight, executive function and the role of belief in capacity assessments; the use of covert recording of clinicians and the proper role of family in best interests decisions; gender dysphoria cases; decisions for 16-17 year olds; the role of ethics committees and a Supreme Court decision on naming / anonymising clinicians in litigation. The new edition also includes new sections dealing with disclosure of medical records, the duty of candour and making good apologies, and on the definition of death. THE AUTHOR Ben Troke is a solicitor and a mediator with 25 years’ experience working in health and social care, acting for the NHS and private sector providers and commissioners all over the country. His particular interest is in decisions about medical treatment and he regularly deals with urgent applications to court in emergency situations. Ben is independently rated as one of the leading practitioners in the country in the Court of Protection. He currently sits on the Law and Ethics Policy Unit of the Faculty of Intensive Care Medicine, the clinical ethics committee of Alder Hey children’s hospital, and the Mental Health and Disability Committee of the Law Society. TESTIMONIALS FOR THE FIRST EDITION ‘This book was rather excellent … There is a danger of this being a dry subject, but I quickly warmed to Troke’s easy writing style – clear explanations and a light touch.” – Review by John Larkin, Medical Journalists’ Association “This informative, accessible book is much needed by clinicians, who will welcome its breadth, legal accuracy and clarity.” – Rachel Griffiths MBE, Mental capacity and human rights consultant “Not only is this book a worthwhile read because of its accessible style, there are also some useful insights for both medics and legal practitioners, such as the research which observed that the better a physician’s communication style and soft skills, the less likely they were to have been sued by their patients.” – Solicitors For the Elderly CONTENTS 1 – Context 2 – Choices Available 3 – Consent – Adults Making Choices 4 – Capacity Part A – Able to Make This Decision 5 – Capacity Part B – Best interests and Who Decides 6 – Children and Parents 6½ –Coda: Defining and Disputing Death 7 – Conflict Resolution and Court 8 – Conclusions – and Taking Control Resources Best Practice Serious Medical Treatment Checklist (Pre-Issue) Legal Glossary