Tackling capacity

The rugby World Cup spectacular quickly turned into a battle of the southern hemisphere's rugby nations, but what stood out for me was the bruising nature of the contests and the approach taken by the International Rugby Board (IRB) in connection with head injuries.

The decision as to whether or not a player stays on the pitch after suffering a head injury has been taken out of players' hands. The IRB has decided that it is in the players' best interests for head injury assessments (HIA) to be undergone by any player who suffers a head injury.

A decision made by a third party governing body, albeit based on medical advice, now affects all players of the game at a professional level. While there is an argument that it is in the best interests of the players, how much input do the players have in determining what treatment they do or don't receive?

During the Wales quarter final, a player suffered a head injury and was taken off the pitch for his HIA. My mind drifted to work and the 'best interests' decision that had been made by a third party on behalf of the player.

Capacity, by its very nature, is a fluid concept. Prior to the head injury, our rugby player had full capacity and his views, at that stage, as to what medical treatment he may want to receive in any given circumstance was decisive.

But, once incapacity is established (i.e. after the injury), as Peter Jackson J noted in the case of Wye Valley NHS Trust v Mr B [2015] EWCOP 60, there is no theoretical weight or lack of weight that should be given to the person's wishes or feelings, beliefs and values. In some cases, the decision will be that very significant weight will be given to the incapacitated party's wishes and feelings, where as in others, this may not be the case.

Best interests v personal wishes

The above case concerned an application to court by an NHS Trust, who were seeking a declaration from the court as to whether it was in Mr B's interests to receive medical treatment or not. It also sought to establish how much weight needed to be given to the medical view of best interests, as opposed to the individual's wishes and feelings about the treatment that was being proposed.

Comparing Mr B to our rugby player, both lacked the capacity to make treatment decisions at the time of their injury, the former because of his psychiatric illnesses and his compromised ability to understand his injury, and the later because of the nature of the impact injury and desire to continue playing for his team, without possibly considering the long-term medical risks involved.

The question for the court in Mr B's case was how much weight to place on his wishes and feelings, as well as his religious beliefs.

Individuals must be permitted and encouraged to participate as fully as possible in any 'best interests' decision. In Mr B's case, the judge met with him to discuss the views he had expressed about not wishing to receive treatment for his medical condition, on the grounds of his religious beliefs and feelings about the treatment.

The judge decided that Mr B's feelings and believes needed to be taken into account and he refused the trust's application to amputate Mr B's foot.

In practice, I have come across situations where
a health and welfare decision needs to be made by
a professional attorney.

In line with the comments of Peter Jackson J,
a detailed meeting took place between the donor,
the professional attorney and the donor's doctor to enable us to understand what steps the donor would want the attorney to take on his behalf, in the event of certain medical decisions being required to be taken. This ensured that at all times, decisions were made with the donor's views in mind. 

David King is a solicitor at Hugh James

He writes the regular vulnerable clients comment in Private Client Adviser