by Stuart Sorensen In September 2007, 26 year old Kerrie Wooltorton swallowed poison before reporting to her local hospital to die. Upon arrival she presented clinical staff with a document which she described as a living will in which she had refused treatment.
Miss Wooltorton was not treated because the staff believed her living will was valid and applicable as an Advance Decision under the Mental Capacity Act 2005. Public reaction to her death has been emotive and many have called for a change in the law to prevent such tragic events happening again. However change in the law is unnecessary. The Mental Capacity Act does not support it in the first place.
In order for an Advance Decision to refuse life sustaining treatment under the Mental Capacity Act to be valid several conditions must be in place. The person must:
Since Miss Wooltorton drank the poison intentionally as part of a suicide attempt we can assume that she was motivated by a desire to bring about her own death. This means that she cannot be seen as decision-maker in the eyes of the law.
The power to decide passes to the care team who have to act in what they reasonably believe to be her best interests. It seems reasonable to doubt that best interests means watching her die slowly and presumably painfully from acute poisoning.
There is much confusion about the Mental Capacity Act's implications for suicide. The Mental Capacity Act's Code of Practice is clear that the Act does not support suicide, assisted dying or mercy killing. Let's not throw the baby out with the bathwater and repeal a necessary piece of legislation because of a suicide that should never have been allowed to happen in the first place.
Stuart Sorensen is director of AMJ Socialcare Training & Consultancy Ltd.
In order for an Advance Decision to refuse life sustaining treatment under the Mental Capacity Act to be valid several conditions must be in place. The person must:
- Be 18 or over;
- Have the capacity to make the decision in the first place;
- Provide the advance decision in writing, signed, witnessed and accompanied by a statement outlining precisely what they mean; and
- The decision-maker must not be motivated by a desire to bring about the person's death.
Since Miss Wooltorton drank the poison intentionally as part of a suicide attempt we can assume that she was motivated by a desire to bring about her own death. This means that she cannot be seen as decision-maker in the eyes of the law.
The power to decide passes to the care team who have to act in what they reasonably believe to be her best interests. It seems reasonable to doubt that best interests means watching her die slowly and presumably painfully from acute poisoning.
There is much confusion about the Mental Capacity Act's implications for suicide. The Mental Capacity Act's Code of Practice is clear that the Act does not support suicide, assisted dying or mercy killing. Let's not throw the baby out with the bathwater and repeal a necessary piece of legislation because of a suicide that should never have been allowed to happen in the first place.
Stuart Sorensen is director of AMJ Socialcare Training & Consultancy Ltd.
Regarding Kerrie Wooltorton and her death in hospital after refusing treatment, this could be she a misunderstanding of The functions of The Mental Capacity Act and should not have been allowed to die without taking every action to prevent this. An urgent declaration could have been sought from The Court of Protection whilst properly assessing her capacity, after all the doctors knew of her mental health history and previous attempts at self harm/suicide. If they can show a "reasonable" beleif that she lacked capacity they could have treated her in her best interest and the Act states that saving a persons life is in their best interest. In any event the doctors could also have treated her the moment she lost consciousness as this by definition means that she would not have had the capacity when unconscious. The doctors and lawyers involved should have realised the "living will" was invalid and if they had any concerns about her capacity should have acted more positively and proactively. I understand that on previous occassions she had been treated in similar circumstances with reasonable force as she was deemed to lack capacity to decide. What changed on the occassion she successfully ended her life?
Surely it was a safer option to treat her and face assault charges than to allow her to die and face civil action. The Court of Protection has procedures to respond to urgent cases such as this 24/7 and no mention of any referral to this Court was made.
Hi Vince,
I'm not sure the decision was so cynical as to avoid prosecution - I think it was a genuine misunderstanding about a piece of law that had only been in force for a few months at the time.
Cheers,
Stuart
Hi Stuart,
Interesting article. I don't think the whole Act needs to be repealed; but what has made the Act confused and unclear is the insistence that advance directives are legally binding. This removed the balance between two of the principles of the Act a) that a person is not assumed to lack capacity simply because they make an unwise decision and b)the persons best interests must always be taken into account. I've said more on this on my blog, but things are so mixed up in this part of the Act that you really could not take a decision without going to the Court of Protection and that's just not practical in many situations; there isn't the time.
Hi Stuart
According to the Norwich Evening News, the coroner said that Miss Wooltorton’s advance decision wouldn’t have been binding because it wasn’t witnessed. But, actually, the advance decision didn’t come into it, as the doctors were sure that Miss Wooltorton had capacity to make the decision at the time the treatment was offered: ‘The coroner asked all the witnesses at the inquest if Miss Wooltorton was showing signs of mental disorder which might have left her unable to make a decision. He said during the inquest: "The answer very clearly in every case was no; there was no question of Kerrie having any impaired capacity. The fact that a deliberate decision to die may be regarded as perverse does not mean that anyone has the right to overrule the decision when that decision is made by an adult with capacity. Any treatment to save Kerrie's life in these circumstances would have been unlawful because the law respects the autonomy of an individual to make a decision, even if the decision is seen to be perverse by others. It is only if the ability to make a decision does not exist that anyone can overrule the person's wishes."’
There may have been a possibility of treating her under the Mental Health Act without her consent but I don’t know the details of why that wasn’t deemed appropriate.
It’s true that a decision-maker making a best interests decision about someone else cannot be motivated by a desire to bring about that person’s death, but this does not apply to someone making an advance decision to refuse medical treatment for themselves for a time in the future when they don’t have capacity to make that decision. This is made very clear in the Mental Capacity Act Code of Practice, 9.24-9.28. Indeed, surely the very nature of life-sustaining treatment means that to refuse it is to choose to die?
Suicide has been legal in this country for a long time and it is a well-established principle that anyone who has capacity to refuse treatment absolutely has the right to refuse that treatment (no matter what the treatment is), unless they are under Part IV of the Mental Health Act. Whether you agree with the principle or not, the Mental Capacity Act is simply offering individuals the right to be on the same footing when they lack capacity to refuse treatment as they would have been if they had had capacity.
It absolutely is the case that an advance decision is legally binding, if it exists, is valid (ie the person lacks capacity to make the decision at the time the treatment is being offered and has done nothing to show they’ve changed their mind) and is applicable to the treatment in question. An advance decision to refuse life-sustaining treatment has to be in writing, signed and witnessed and include a statement to the effect that it applies even if the proposed treatment is life-sustaining. The only time that an advance decision to refuse medical treatment would not be legally binding (if it met the required conditions) is if the treatment were for mental health and the person was under Part IV of the Mental Health Act. See 9.33 of the MCA Code of Practice.
I’m sorry if I sound really pedantic but I do think it’s really important that people understand the Mental Capacity Act and the rights it gives individuals, both in relation to making decisions now and to planning for the future.
Thanks.
Liz
Why would it have been better for her to live? I understand she had made several suicide attempts in the past, and received emergency treatment - presumably this time she foresaw this and so had preapred the living will. Life was obviously too much for her to cope with, and she chose what may well have been her only release.
What is really sad is that this was the case. Why was she not receiving proper mental health care? Why, is she posed such a 'risk' to herself was she not in hospital? I imagine the answer is something to do with being seen as 'attention seeking, manipulative, uncurable' personality disordered person.
Many people including myself have experienced neglect and abuse from staff who should know better. Im lucky enough to have receieved treatment (incidentally I didnt have a pd after all) but many many people still suffer.