Mental Capacity Case

Re CD (Treatment: Haemodialysis)

Judge
Poole J

Re CD (Treatment: Haemodialysis) [2024] EWCOP 55 T3 concerned a 66 year old man with end stage renal disease and dementia.  He had been receiving haemodialysis since 2022, but following a third stroke in the summer of 2024, he had repeatedly pulled out the long-term catheter required for haemodialysis to be provided to him twice weekly.  A short-term catheter had been inserted but could not remain in situ much longer, and the applicant Trust considered that the point had been reached where continued dialysis and insertion of catheters was not in his best interests.  The court refused their application for declarations in support of that position.  The Trust’s evidence was that some doctors considered it unethical to insert a further catheter, but that there was one doctor who was willing to carry out the procedure if the court determined it was in CD’s best interests.  The evidence was that with a catheter and continued haemodialysis CD might live for 3-6 months and without it for only 1-2 weeks.  There was a 10% chance the operation to insert the catheter wa mix of burdens and benefits’ of continued life for CD.  The court was told that some patients with capacity in CD’s position would choose to continue with haemodialysis and others would not. CD’s family were adamant that he would choose to continue – although as a Muslim he would not have wanted to suffer an intolerable burden from medical treatment, that stage had not been reached and he continued to enjoy aspects of life notwithstanding his illness.  Weighing up all these factors, the court concluded that continued treatment was in CD’s best interests and made a declaration that it was “in CD’s best interests and lawful for him to have a new tunnelled haemodialysis catheter inserted under sedation or general anaesthetic and to receive haemodialysis thereafter subject to any significant change in his clinical presentation and provided that the treating clinicians are willing to offer this treatment.”

It is rightly unsurprising in a case where the medical evidence is that some patients with capacity would choose treatment and others would not, that the best interests decision is strongly influenced by the evidence of what the particular patient would have wanted and to reach a decision that gives effect to the patient’s likely wishes or values.  The declaration made hints at the difficulty that the parties in this case might find in the near future – whether doctors would continue to be willing to offer to re-insert a catheter under sedation or general anaesthetic to CD given the predictable deterioration in his condition, and whether agreement might be reached about when the burdens of treatment outweighed the benefits. To an observer, the case appears ideally suited to mediation given the apparently common ground that at some point it would be appropriate to move CD to palliative care to maximise his quality of life as he approaches his death.