“...[legal proceedings are] not being simply a question of providing instruction to a lawyer and then sitting back and observing the litigation, but rather a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop.”
“There is no principle either of law or of medical science, which necessarily makes it impossible for someone who has litigation capacity at the same time to lack subject-matter capacity. That said, however, it is much more difficult to imagine a case where someone has litigation capacity whilst lacking subject-matter capacity than it is to imagine a case where someone has subject-matter capacity whilst lacking litigation capacity... I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go as far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity.”
“... it follows that the issue of litigation will always fall to be determined in the context of the particular proceedings.... None of this requires P to instruct his advisers in a particular way. Like any other litigant, in any sphere of law, he may instruct his lawyers in a way which might, objectively assessed, be regarded as contrary to the weight of the evidence.”
“I have little doubt that an individual who lacks capacity to decide about medicaltreatment will frequently lack the capacity to litigate in a case where that is the sole or predominant subject matter. I have equally no doubt, however, that the proposition is not ubiquitous, in the sense that the two tests should be regarded as synonymous.”
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological... they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.” [...] “The purpose of the best interest test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are ... But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”
“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good - in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”
"[24] When applying the best interests test at, s.4(6) MCA, the focus must always be on identifying the views and feelings of P, the incapacitated individual. The objective is to reassert P's autonomy and thus restore his right to take his own decisions in the way that he would have done had he not lost capacity. [25] The weight to be attributed to P's wishes and feelings will of course differ depending on a variety of matters such as, for example, how clearly the wishes and feelings are expressed, how frequently they are (or were previously) expressed, how consistent P's views are (or have been), the complexity of the decision and how close to the borderline of capacity the person is (or was when they expressed their relevant views). In this context it is important not to conflate the concept of wishes with feelings. The two are distinct. Sometimes that which a person does not say can, in context, be every bit as articulate as wishes stated explicitly."
“As ketoacidosis develops, the ability of a person with diabetes to manage their diabetes deteriorates because their level of consciousness and ability to think clearly is also disturbed. It is therefore essential that a person living with diabetes cannot only manage their insulin appropriately at every injection without omitting or forgetting doses but also that they are able to adjust their insulin doses according to what they eat... and that they are able to recognise the effect of illness on their diabetes and make suitable adjustments to their insulin administration to control their blood sugar.”
“It’s not a clinical risk the Health Board can take. It would only take one incident like that. It’s a foreseeable risk, it’s not something that has never happened. It may not happen weekly, but it’s a foreseeable risk that might lead to death on the first occasion that it happened. There is nothing that led up to the incident [on 5th November] that would have alerted staff to act differently. Maybe there was an additional stressor caused by the Monday [the urine on the bed incident] but those things periodically happen. There are always stressors, and SJ’s fluctuations in her diabetes is particularly susceptible to stress and other external factors. We cannot control and predict, we can only respond after the event.”