Job: Post-Doctoral Research Fellow, Judging Values and Participation in Mental Capacity Law at Birkbeck

3 December 2018

Location: London
Salary: £37,912 to £43,333
Hours: Full Time
Contract Type: Fixed-Term/Contract
Placed On: 30th November 2018
Closes: 1st January 2019
Job Ref: 372209

The post is for a fixed-term Postdoctoral Researcher for 2.8 years who specialises in socio-legal studies and mental capacity law, to join the AHRC-funded project, Judging Values and Participation in Mental Capacity Law, located at the Institute for Criminal Policy Research, School of Law, Birkbeck College, University of London. This exciting project is undertaking a socio-legal, philosophical, and policy examination of current judicial deliberation in mental capacity decisions, and is led by Dr. Camillia Kong (ICPR), with co-Investigators Professor John Coggon (Bristol), Professor Penny Cooper (ICPR), and Dr. Michael Dunn (Oxford).

You will:

  • Ideally be able to demonstrate specialist expertise and academic training in mental capacity law, judicial deliberation, and/or or socio-legal approaches that will support a philosophical and policy-oriented programme of work
  • Possess expertise in, or experience with, empirical studies, with a focus on the application of qualitative methodologies in legal research in particular
  • Have excellent communication and interpersonal skills, with a proven ability to work collaboratively as part of an interdisciplinary research team
  • Have the ability to work independently to manage academic research and associated activities, including the ability to work towards deadlines
  • Possess a growing international research profile, demonstrated by academic publications in leading national and international journals, or be able to show clear potential to be able to produce such publications

You will be responsible for:

  • Conducting and assisting in interviews with judges and legal advocates, as well as undertaking qualitative data analysis for the project
  • Contributing to legal and philosophical analysis to be conducted within the project, depending on your specific skills and disciplinary background
  • Collaborating closely with project investigators in contributing to the ambitious programme of mental capacity law research around central project themes which span from legal jurisprudence, judicial deliberation, value theory, and legal policy
  • Advancing this programme of work by initiating and developing independent research papers for journal publication around central project themes
  • Contributing to project network activities, including symposiums with advisory group members, strategic meetings with international collaborative partners / centres, and the project conference
  • Representing the Judging Values project at external conferences, meetings, and seminars
  • Contribute to the intellectual life at the ICPR by attending relevant meetings and seminars
  • Any other duties commensurate with the grade and level of responsibility of this post, for which the post holder has the necessary experience and/or training

Grade 7 of the College’s London Pay Scale which is £37,912 rising to £43,333 per annum

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News and comment: Forced treatment in cancer patient’s best interests

26 May 2010

In DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), Wall P. ruled that it would be lawful to impose treatment on an incompetent cancer patient in her best interests, despite her apparent dissent and lack of co-operation stemming from phobias of hospitals and needles. PS has been diagnosed with endometrial cancer.

PS has “a significant impairment in intellectual functioning as a consequence of a learning disability” and does not pass the test of capacity in ss. 2 and 3 of the Mental Capacity Act 2005. The medical evidence is overwhelming that the surgical procedure (hysterectomy and bilateral salpingo-oophorectomy) would be in PS’s best interests.

Wall P. held:

[19] I am further satisfied, given her hospital and needle phobia, that it may well be necessary to sedate PS in order to convey her to hospital, and that the risks of sedation in these circumstances have been appropriately addressed by the Trust. The need for such sedative treatment will only arise if persuasion fails, and I am accordingly satisfied that it is necessary for the trust to authorise such treatment as being in PS’s best interests, and to use force if necessary to sedate her and convey her to hospital.

[20] In my judgment, it follows from paragraphs 11 to 14 above, that it will be necessary to detain PS in hospital during the period of post-operative recovery. After mature consideration, the Official Solicitor, on PS’s behalf, came to the view that it was not necessary to invoke the Deprivation of Liberty Provisions under Schedule 1 of the Act. I agree with that analysis. If it is in PS’s interests (as it plainly is) to have the operation, it is plainly in her interests to recover appropriately from it.

It is not only the treatment that must be in PS’s best interests under the MCA, but the sedation and/or force needed in order to perform it. In other words, sedative and forcible treatment must be in the patient’s best interests. It is possible for a treatment to be in an incompetent patient’s best interests, but for forcible treatment not to be; this is the most charitable explanation of Sir Stephen Brown P.’s decision in Re D (Medical Treatment: Mentally Disabled Patient) [1998] 2 FLR 22 that continued dialysis would no longer be in the best interests of an incompetent man who was unable to co-operate with his treatment (see Andrew Grubb’s commentary on Re D at (1998) 6 Med L Rev 103 (Athens login required)). A clear statement of this principle will have to await a case with less time pressure (see, for example, Trust A and Trust B v H (An Adult Patient) [2006] EWHC 1230, [27] (Fam) making a similar point in the context of the use of restraint). The gist of the present judgement is that the surgery is so overwhelmingly in PS’s best interests that the use of sedation and force needed to achieve this–which has been carefully considered by a multi-disciplinary team–is also in her best interests.

This story is on the front page of the Telegraph tomorrow.

Update on 5 August 2010: I have posted a comment criticising a rather misleading blog post about this case on Bioethics Forum.


Comment: the law governing the withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state

4 February 2010

New medical evidence regarding functional magnetic resonance imaging (fMRI) of patients diagnosed in vegetative states is in the news. The relevant article is Monti, Martin M., Vanhaudenhuyse, Audrey, et al. Willful Modulation of Brain Activity in Disorders of Consciousness N Engl J Med 2010 0: NEJMoa090537. [Addendum on 13 November 2012: newer evidence will be discussed in tonight’s Panorama programme showing that a patient previously thought to be in a vegetative state was able to provide information about his condition to researchers.]

English law on the withdrawal of artificial nutrition and hydration from patients diagnosed in a permanent vegetative state is governed by the decision of the House of Lords in Airedale NHS Trust v. Bland [1993] A.C. 789. Anthony Bland was in a persistent vegetative state (PVS) following the Hillsborough disaster. His family and medical team agreed that it was in his best interests to withdraw artificial nutrition and hydration (ANH). A declaration that such withdrawal would be lawful was sought from the courts. The House of Lords decided that although the intention of the doctor would be to bring about Bland’s death, the proposed withdrawal would be lawful as it constituted an omission rather than an act. The doctor’s duty did not require the provision of treatment that was not in the patient’s best interests.

In Bland, Lord Goff held that as a matter of practice, judicial approval should be sought in all PVS cases in which the patient’s medical team believe it is in her best interests for ANH to be withdrawn. The practice of obtaining judicial approval in all PVS cases has been formalised, first by the Official Solicitor’s successive Practice Directions, and more recently by the Code of Practice issued under the Mental Capacity Act 2005 (MCA) which assumes that the existing common law rule will continue despite the Act’s silence on this point. It will therefore continue to be the case that even when a patient-appointed donee of a lasting power of attorney consents to the withdrawal of ANH from a PVS patient, the approval of the Court of Protection will be sought prior to the implementation of the decision. (Mental Capacity Act 2005 Code of Practice [6.18], [8.18], [8.19], subsequently confirmed by Court of Protection Practice Direction 9E on serious medical treatment). This practice of seeking judicial approval in PVS cases has not been extended to other cases in which a decision is made to withdraw life-sustaining treatment, including ANH (in the dying phase) and ventilation. Although some such cases have come to court, most do not.

What is it that is special about PVS cases? Absent any judicial attempt to rationalise the special treatment of such cases, one can only speculate as to whether the rule requiring judicial approval in such cases reflects particular concern or is simply the result of historical accident. When ANH is withdrawn in a palliative care setting at the very end of life on the basis of the patient’s best interests, judicial involvement is not required. PVS patients, though, are not obviously dying and could live for many years longer if ANH were continued.

(adapted and updated from Penney Lewis, ‘Withdrawal of Treatment from a Patient in a Permanent Vegetative State: Judicial Involvement and Innovative ‘Treatment’’, Medical Law Review, Vol. 15, 2007, pp.392-399)


News: an advance decision to refuse treatment following a suicide attempt

1 October 2009

The inquest into the death of Kerrie Wooltorton has recorded a narrative verdict. According to BBC News, “Miss Wooltorton wrote her living will in September 2007, asking for no intervention if she tried to take her own life. She died four days after being admitted to hospital for drinking anti-freeze. . . . The hearing in Norwich on Monday was told Miss Wooltorton had mental capacity and had the right to not consent to medical intervention.”

The BBC reports excerpts from the verdict:

“Even when she was losing consciousness she was absolutely clear in refusing treatment . . . The doctor went over and above what was required of him.”

“He discussed the case with clinical colleagues, took a second opinion from a fellow consultant and sought advice from the medical director.”

“A deliberate decision to die may appear repugnant, but any treatment to have saved Kerrie’s life in the absence of her consent would have been unlawful.”

“She had capacity to consent to treatment which, it is more likely than not, would have prevented her death.”

“She refused that treatment in full knowledge of the consequences and died as a result.”

Advance directives, living wills or advance decisions are decisions made while a person is competent regarding the treatment and care of that person once he or she becomes incompetent. The Journal of Medical Ethics published an interesting article on this topic last year: D Sontheimer. Suicide by advance directive. Journal of Medical Ethics 2008;34:e4. (You will need an Athens account to access this.)

Both Sky News and the BBC reported earlier today that Ms Wooltorton’s ‘living will’ was binding because of the Mental Capacity Act 2005. This is incorrect; the relevant provisions of the Act (ss.24-26) did not come into force until 1st October 2007 and this case occurred in September 2007. The validity of her advance refusal was governed by the common law. (Had it been governed by the Act, the advance decision would not have been valid unless it was witnessed (s.25(6))).

The common law allowed persons to refuse unwanted treatment in advance of incapacity (In re T. (Adult: Refusal of Treatment) [1993] Fam. 95; Airedale NHS Trust v Bland [1993] AC 789; Re C (Adult Refusal of Treatment) [1994] 1 WLR 290; Re AK (Medical Treatment: Consent) [2001] 1 FLR 129; HE v A Hospital NHS Trust [2003] 2 FLR 408). This was not a “grey area”, as described by Andrew Jones to Sky News Online. The following quotation from Lord Goff’s speech in the House of Lords decision in Airedale NHS Trust v Bland [1993] AC 789, 864 makes this clear:

“First, it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so . . . To this extent, the principle of the sanctity of human life must yield to the principle of self-determination . . . and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must likewise be qualified.  On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B v Hotel-Dieu de Quebec (1992) 86 D.L.R. (4th) 385.  Moreover the same principle applies where the patient’s refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred: : see, e.g., In re T. (Adult: Refusal of Treatment) [1993] Fam. 95.”