Book Review: “Medical Treatment: Decisions and the Law” (4th edition)

Medical Treatment: Decisions and the Law (4th edition) (Edited by Christopher Johnston QC and Sophia Roper QC (Bloomsbury Professional, 2012, paperback and ebook, £110))

I described the 3rd edition of this work (published in 2016) as the authoritative practitioner text for medical treatment cases.   Now co-edited by Christopher Johnston and Sophia Roper QC, and with a further expanded authorial team from Serjeants’ Inn Chambers (some  29 in total, including the editors), I am happy to say that the description remains equally apt for the 4th edition.   As before, it contains a very helpful overview of general principles in Part 1 (addressing the position both in relation to adults and children), before applying those principles to specific problems in Part 2 (for instance, in a particularly strong chapter, in relation to cases involving pregnancy and childbirth). Throughout, the crisp analysis is supported by extensive footnotes enabling rabbit holes to be followed where relevant (or mined for skeleton arguments, to mix a metaphor).

Since the publication of the last edition, it is perhaps relevant to note the following key developments (all covered in this work):

  • The continued working out of the implications of the Montgomery decision as regards the duties of medical professionals (applying the law of negligence) to provide relevant information to patients.   As this new edition notes (although the framing which follows is mine) there is an intriguing, and yet to be resolved, tension between the approach of the MCA 2005 (pushing towards a low threshold for the giving of consent) and the negligence approach (pushing towards ever greater information-provision before such consent can be said to be informed);
  • The continued discussion between the courts and clinicians about their respective decision-making authority, seen in the life-sustaining treatment context in NHS Trust v Y and in the context of those under 18 in Bell v Tavistock;
  • Linked, continued discussion about when and why authority must be sought from the courts, including the publication of guidance (in relation to adults) by the Vice-President of the Court of Protection – an issue covered in exemplary fashion in Chapter 6 (‘Going to Court’), likely to be one of the most well-thumbed chapters in the work;
  • A simultaneous expansion (to those aged 16/17) and contraction (through the so-called Ferreira carve-out) of the concept of deprivation of liberty in the medical context;
  • The placing of conventional understandings of medical decision-making under enormous strain during the pandemic so far, placing an increased focus (amongst other things) on choices and funding in access to healthcare.

One other development since the previous edition I am duty-bound to note is the publication of Ben Troke’s A Practical Guide to the Law of Medical Treatment Decisions, which, at around £100 cheaper, and several hundred pages shorter, might on its face appear somewhat to have stolen the present authors’ thunder.   However, as I noted in my review at the time, the two books in fact very happily co-exist: Ben Troke’s book for the medical professional who needs an overview, and this book for either the particularly medico-legally enthusiastic clinician or, more likely, the desk of the lawyers within the Trust, Integrated Care Board or Local Health Board (or those they instruct) who need clear and above all sound assistance in providing advice to that clinician/their team.

I am sure that work has already started on the next edition, so to add to the editors’ shopping list (or perhaps even in the interim to include on the materials they maintain on their website), can I add to the wish-list the following?

  • Navigating the dilemmas arising with so-called “feeding at risk,” as this is an area rife with complexity.   Having been involved in guidance recently published by both the Royal College of Physicians and the Royal College of Speech and Language Therapists, in this zone, it would be fascinating to see the authors’ take on these issues;
  • Discussion as to the precise evidential basis upon which the courts should be reaching their conclusions about the person’s likely decision for purposes of determining their best interests – an issue which is only becoming ever more important as the line between substituted judgment and MCA 2005 best interests seems to become ever thinner in this zone.
  • Discussion of the Strasbourg case-law which places a somewhat different gloss on the scope of the Article 2 ECHR operational duty to secure life in the presence of suicide risk than did Rabone.  That latter decision might remain the last word from our Supreme Court at the moment, but it was based upon (in effect) a prediction as to what Strasbourg would do which the subsequent case-law has not entirely borne out;
  • Bringing back the appendices with precedent orders – although entirely understandably they had to be culled from this edition to keep it within manageable limits, it is particularly helpful to have precedents covering some of the (necessarily) complex procedural and substantive points arising in the cases covered by the work.

As with the previous edition, whilst it draws lightly upon academic commentary in places, this book does not dwell upon points which have more “traction amongst the dreaming spires of the Academy than in the robust and ultimately pragmatic world of the court room” (in Sir James Munby’s rather robust dismissal of such a point in NHS Trust v X (No 2).   Nor does it seek to engage with the ethical dilemmas that underpin so many of the decisions in this area (for a contrasting – or perhaps complementary – approach, see the 2nd edition of Law and Ethics in Intensive Care).  But as an authoritative guide to how the law works, and how to navigate the law in medical treatment decision-making, the guide is unrivalled.

[Full disclosure: I am grateful to the publishers for providing me with a copy of this book. I am always happy to review works in or related to the field of mental capacity (broadly defined)]

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