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Critical commentary on case law Essay Example

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Critical commentary on case law

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The second part of this paper presents an analysis of the court’s decision in Aintree.James, a husband, father of three, grandfather and a musician was admitted to hospital for medical treatment in 2012. At the time he became infected and was placed in the intensive care unit of the hospital and placed on a ventilator. His treatments varied and included CPR, a tracheostomy and receipt of artificial hydration and nutrition. Although his condition improved and worsened throughout, he was eventually unable to make decisions about his medical treatment. However, he recognized and responded through nodding and smiling to his family and hospital staff.7 James reportedly kissed family members on occasion.The hospital applied to the Court of Protection for declarations including a declaration that it would be in James’ best interest to withhold some treatment such as CPR if the patient’s condition deteriorates. The family opposed these declaration on the grounds that James had previously recovered from infections and that he was showing signs through responses to family and nursing staff that he was able to sustain and enjoy some quality of life. The Court of Protection denied the declarations and the hospital appealed. The Court of Appeal allowed the declarations and the family appealed to the Supreme Court.The issue of capacity was considered by the Supreme Court in that the patient was diagnosed as being in a state of ‘minimal consciousness’ (Aintree, 2013: para.11 However, the Supreme Court considered that this term is misleading based on Baker J’s contention I W v M (2011) that minimal consciousness can mean anything from ‘just above the vegetative state’ to ‘bordering on full consciousness’. However, despite the family’s observations about James’ ability to respond to family and medical staff, a medical diagnosis had been made that James’ neurological state had diminished and his brain functioning had been impaired significantly. Therefore James’ capacity was not an issue.Thus Aintree was not about whether or not the patient lacked capacity. Rather the case was about how to act and treat a patient that lacks capacity to consent to treatment or the withdrawal of treatment in critical care conditions. The Mental Capacity Act 2005, makes it clear that it is to be assumed initially that the adult patient has the requisite capacity and all steps should be taken to

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Journal Articles

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Nicholson, T.R.J.; Cutter, W. and Hotopt, M. ‘Assessing mental capacity: The Mental Capacity Act.’ (February 2008) 336(7639) British Medical Journal,322-325.

Nursing Practice. ‘Understanding and using the Mental Capacity Act.’ (21st May 2014) 110(21) Nursing Times, 16-18.

Selinger, C.P. ‘The right to consent: Is it absolute?’ (2009) 2(2) British Journal of Medical Practitioners, 50-54.

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Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.

Burke v The General Medical Council [2005] EWCA Civ 1003.

NHA Trust A v M, NHS Trust B v H [2002] Fam 348.

Re B [2002] 2 All ER 449.

Re T (Adult: Refusal of Medical Treatment) 4 All ER [1992] 49.

W v M [2011] EWHC 2443.


European Convention on Human Rights 1953.

Human Rights Act 1998.

Mental Capacity Act 2005.

Mental Capacity Act 2005 Code of Practice 2007.

Miscellaneous Sources

Queensland Government, Queensland Health. ‘Implementation of guidelines: End of life care: Decision-making for withholding and withdrawing life-sustaining measures for adult patients.’ (n.d.) Ethics Team, Clinical Unit Centre for Healthcare Improvement, 1-61.

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preview essay on Critical commentary on case law
  • Pages: 17 (4250 words)
  • Document Type: Essay
  • Subject: Law
  • Level: Undergraduate
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