I think Mr Justice Poole must be wrong in his interpretation of section 25(4)(c) of the Mental Capacity Act

If Mr Justice Poole is right, then presumably the following conversation would make sense - but to me, it seems absurd:

Patient to Doctor: I am withdrawing my Advance Decision which refuses 'treatment X'.

Doctor to Patient: I'm sorry, but I think you aren't mentally-capable - so you cannot withdraw your Advance Decision.

Patient to Doctor: But I'm not refusing Treatment X any more - in some circumstances, I might want Treatment X.

Doctor to Patient: Well, what you've just said is clearly inconsistent with the Advance Decision remaining your fixed decision - so your Advance Decision is not valid any more.

Patient to Doctor: Is that the same thing, as saying my Advance Decision doesn't exist now?

Doctor to Patient: Yes, it is - the Advance Decision isn't legally valid now.

Patient to Doctor: But - I couldn't withdraw my Advance Decision? I don't think, I can make sense of this conversation, doc.

It is worth remembering, that an Advance Decision (ADRT) only ‘expresses your treatment-refusal AFTER you have lost your capacity’. Although the validity of a written ADRT can be assessed as soon as it is created, it cannot be applicable while you are still mentally-capable – if you are mentally capable, a clinician has to ask for consent to treat you, and you can either accept or refuse the treatment.
There is nothing logically-incongruous, about having an Advance Decision which refuses a treatment AFTER you become incapacitous, and also accepting the same treatment while you are still capacitous: although valid, ‘in a ‘real sense’ an Advance Decision does not exist while you are still mentally-capable’.

So, to make a valid ADRT invalid while you are still capacitous, you should (in theory this is indeed ‘must’ and not should) EXPLICITLY WITHDRAW (or explicitly retract, revoke or whatever) your ADRT – otherwise, it is possible that some people would argue ‘… but he accepted the treatment which is refused in his Advance Decision – surely that made his Advance Decision invalid!’. The answer is ‘no it didn’t make the Advance Decision invalid’. HOWEVER, if a doctor knows a patient is accepting a treatment, which would be refused by an ADRT if the patient were mentally-incapable, then the doctor should say ‘Are you withdrawing your ADRT?’ – then, the question and the patient’s answer make the situation clear.

As it happens, if section 25(2)(c) applies during mental capacity, as Mr Justice Poole believes it does

‘I interpret s.25(2)(c) as allowing for the advance decision to be rendered not valid should the person who made the advance decision do “anything else” (other than withdrawal or granting an LPA which displaces the advance decision) which is “clearly inconsistent” with the advance decision remaining their fixed decision, before or after they have lost capacity to make the relevant treatment in question.’

then [and using ‘treatment’ a bit loosely here, in the context of ‘specified treatment’] if a person’s position amounts to ‘While I’m still mentally capable, if I get pneumonia I’ll decide whether or not I want to be treated based on MY assessment of MY quality of life at the time – but If I can’t decide at the time because I've lost capacity, then I don’t want to be treated for pneumonia so I’ll write an ADRT to that effect’, that position would not be possible. I can’t see any reason, when I read the MCA, why ‘I might accept the treatment if I’m capacitous – but I don’t want the treatment if I’ve lost capacity’ isn’t consistent with the ethos of the MCA.

I wasn't thinking properly, in an my first post when I was writing about 25(2)(c) DURING mental capacity. It simply isn't correct, to assume that by accepting a treatment while capacitous, if follows that a person is by implication contradicting an ADRT which refuses that treatment (and I said that in the first post). The 'reasoning' is a bit lengthy, and I'll post it within the next few days.

I think, part of my mind 'was distracted' and I allowed a different part of my mind to type something which I knew was wrong. The point to think about, is that what is 'fixed' in 25(2)(c) must be what I want to happen AFTER I'VE BECOME INCAPACITOUS - and that doesn't 'somehow work in reverse'. What I want after I've lost capacity, isn't necessarily the same as what I want while I still have capacity.

I think I can explain this, by using the example of a Covid vaccination - I'll do it, but I don't have the time to do it today.

I don't have any problem with section 25(2)(c) meaning that if I do something while I'm capacitous, and it is clear that what I've done isn't compatible with an intention that my ADRT should remain valid, then my ADRT is rendered invalid. The problem, is that accepting a treatment which is refused in my ADRT, doesn't necessarily do that. If I say to you 'This is my Advance Decision' as I hold up a sheet of paper - then I rip it up, or set fire to it, then THAT seems to me to render my ADRT invalid via 25(2)(c).

I’ll start with a few admissions. I had always assumed that 25(2)(c) must be intended to only refer to events which occurred while the person was mentally capable: I had therefore concluded that 25(2)(c) must refer to what I will describe here as ‘the ‘withdrawal of’’ an Advance Decision by indirect, less-formal than saying ‘I withdraw this decision’, means.

Basically, what I’ve just written is founded on the idea that an Advance Decision is intended to allow ‘the present and capacitous me, to make a decision which will be applied to a future incapacitous me’. More nerdily, that I create an ADRT while I’m capacitous, to prevent best-interests decision-making from taking place after I lose capacity: it is, after all, called an advance decision – I’m making the decision in advance. It seems very odd that while I’m capacitous I can make a decision (an ADRT) which I intend to prevent best-interests decision-making from applying after I lose capacity, but then during incapacity I can do something which makes best-interests decision-making necessary. If section 25(2)(c) applies during my mental incapacity, then the reason for making an ADRT seems to be thwarted – and, this conversation [with the doctor’s position being 100% constrained by section 25(2)(a) for the patient’s first statement, and by section 25(2)(c) for the patient’s second statement] does seem totally absurd:

Patient to Doctor: I am withdrawing my Advance Decision to refuse the treatment.

Doctor to Patient: I’m sorry, but in my opinion you don’t have the mental capacity to withdraw your Advance Decision.

Patient to Doctor: But I’m not necessarily refusing the treatment any more – I might want that treatment:

Doctor to Patient: Ah – what you’ve just told me, means that your Advance Decision is no longer valid.

Patient to Doctor: So, my ADRT doesn’t exist any more?

Doctor to Patient: Yes – your ADRT doesn’t exist because you’ve told me you might want the treatment refused in the ADRT.

Patient to Doctor: Right. One of us, apparently, lacks mental capacity. You’ve just told me that I couldn’t cause my ADRT to cease existing by telling you I was withdrawing it – but I could make the ADRT cease existing by telling you I might now want the treatment the ADRT refuses. Can you explain that to me, doc?

The above strikes me as ridiculous: if my actions after I’ve lost capacity can invalidate my ADRT, then it seems very-close-to-pointless for me to create the ADRT.

I also admit, that I had not – before the past few days – given much thought to my own position, that 25(2)(c) seems okay provided it only applies to events DURING capacity:

(2) An advance decision is not valid if P—

(a) has withdrawn the decision at a time when he had capacity to do so,

(b) has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates, or

(c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.

The first point to make: section (c) is saying ‘inconsistent with the decision I’ve recorded WHICH IS TO APPLY AFTER I HAVE LOST CAPACITY’.

The second point to make: what I’ve just pointed out, means this is trickier than it might appear at first glance.

Suppose, a person makes an ADRT refusing blood transfusions, and also says (you DO NOT HAVE TO explain ‘why you are refusing’ in an ADRT - you can 'explain why you are refusing' if you wish to, but that isn't a requirement within sections 24-26 of the Act)) ‘[because] My religion forbids blood transfusions’. If, years after the ADRT was created, we are aware that after the ADRT was written the person had [capacitously] accepted a blood transfusion, it might be reasonable to believe ‘the person gave up that religious belief – so, presumably the person [by implication] retracted the ADRT’.

Now, consider a 60 years old man, who is considering Covid vaccinations. And, what would be his position if he lost capacity. We could have many things, influencing his thinking, including the following:

* He has had several Covid jabs – the most recent jab, gave him some painful side-effects

* He believes he has had Covid at least twice after his first jab, and that he had Covid once before his first jab – none of these infections, seemed more serious than a typical mild cold

* The Covid virus seems at present to be becoming ever-more-infectious, and at the same time increasingly less dangerous when it causes an infection (this might change – a more-damaging variant might appear)

* Covid infections become more dangerous as you get older

* The ‘party line’ from the NHS, always seems to be to encourage people to accept booster jabs when they are made available

* It seems to take roughly as long for a vaccine to be created, as for the next variant to emerge: put simply, we seem to be offered vaccines which were designed to cope with the previous variant, not necessarily the current variant

* Some of the vaccines are being manufactured with ‘recently-developed processes’ which, while they might well be ‘safe’, have not got a long-term track-record to examine

* The chance of being exposed to the virus, depends on how much virus is circulating

* If he has lost mental capacity, and if he is made [on a best-interests basis] to have a jab and that jab causes bad side effects, would that make his incapacitous-self distrust clinicians and carers?

I can see no reason, why the man might not put those things together, and decide to make an ADRT which refused Covid vaccinations if he was younger than 75. And while he was still capacitous, he would consider all of those factors whenever a Covid booster was available for him – so, he might at times accept a booster jab, and at other times decline a booster jab.

So, if he creates his ADRT aged 60, loses his mental capacity aged 69, and it is known that after he had created his ADRT [which refuses Covid jabs if he is younger than 75] he accepted two booster jabs, then THAT DOES NOT CONFLICT WITH HIS ADRT.

It simply isn’t logically the case, that accepting an intervention while still capacitous necessarily indicates that the person’s refusal of the intervention in an Advance Decision [which the person only intends to apply AFTER incapacity] has been ‘retracted’ via section 25(2)(c).

I have wondered about, a situation which I’m going to call ‘Grumpy Thinker to Happy Dreamer’. Suppose a man who is capacitous, but who doesn’t enjoy being alive much, creates some ADRTs refusing various life-sustaining treatments. Then, something happens which suddenly and dramatically ‘removes’ his mental capacity: he is now very clearly mentally-incapable, and seems to be ‘living in his own dreamworld’ BUT HE IS ALSO NOW, IT APPEARS, ENJOYING LIFE A LOT. Suppose that the person is physically very healthy, it is three years since he lost the capacity to make his own decisions and started living in his ‘own world’, and he develops pneumonia which if untreated will probably kill him very quickly. If given antibiotics, he will probably be cured, and restored to his healthy [physical] state within a few days – then he might live on, ‘happily if incapacitously’, for decades.
Should he be treated for the pneumonia? It might be possible, to argue that section 25(4)(c) might allow for treatment – although, Grumpy Thinker might have pointed out ‘even if when I’m incapacitous I seem to be enjoying my life, that would not alter the decisions I’m making now in these Advance Decisions’. In effect, Grumpy Thinker who is capacitous, is projecting decisions onto Happy Dreamer who is incapacitous – it seems, thinking as a human being, to be wrong to do that. But I’m not sure, where the MCA prevents Grumpy Thinker from doing that.

So – I’m NOT saying the MCA seems to have everything sorted! But I am saying, that if section 25(2)(c) applies during incapacity, then that conversation with the doctor must be legally correct: and it reads like a Monty Python sketch. I’m also saying, that even if section 25(2)(c) only applies during capacity (i.e. to events which occurred while the person was capacitous) that it is still very tricky. The only ‘very clear ‘indirect withdrawal’’ would, it seems to me, be if I held up a document and announced ‘Look here – this is my Advance Decision’ and then I either tore the document to pieces, or set fire to it.

Alex Ruck-Keene, a barrister with whom I’ve co-authored a paper, has written about why he believes Mr Justice Poole is correct, with some details of the court case, in a piece at:

https://www.mentalcapacitylawandpolicy.org.uk/advance-decisions-jehovahs-witnesses-and-what-does-doing-something-clearly-inconsistent-with-your-adrt-mean/

Alex helpfully includes a link to the court case in his piece – the link to the case is:

https://www.bailii.org/ew/cases/EWCOP/2021/52.html

There is a lovely story in Jeffrey Quill"s book, about a conversation he had with RJ Mitchell. Quill was somewhat insecure, in the context of his lack of a deep understanding of aerodynamics: as a 'new' test pilot, he knew how to fly, but he thought he wasn't equipped to get things across to the aircraft designers. This story is much-quoted, and I think it has a fairly-wide applicability (including to many things I read re EoL/MCA/CPR):

One day he [Mitchell, the designer of the Spitfire] said to me, "Jeffrey, if anyone tries to tell you something about an aeroplane which is so damn complicated that you can't understand it, you can take it from me it's all balls."

As I've said earlier, I wrote something incorrect in my first post - it was this:

'For example, if I have an ADRT which refuses penicillin, if a doctor says 'I want to give you penicillin, because ...' and I then say 'Okay, go ahead and give me penicillin' then I have retracted/withdrawn my ADRT WITHOUT USING THOSE WORDS EXPLICITLY.'

I have made things clearer, in my posts on the 26th and 27th.

I have also now read the piece by Alex Ruck-Keene, and I will look through the actual court ruling again. Alex points to this section of Mr Justice Poole's ruling:

xxxxxxxxxxxxxxxx

52. Three words within s. 25(2)(c) require particular comment:

a. “done”: I read this to include words as well as actions. I am strongly reinforced in this view by what Munby said at paragraph [43] of his judgment in [the pre-MCA case of] HE v A Hospital NHS Trust(above):

“No doubt there is a practical – what lawyers would call an evidential – burden on those who assert that an undisputed advance directive is for some reason no longer operative, a burden requiring them to point to something indicating that this is or may be so. It may be words said to have been written or spoken by the patient. It may be the patient’s actions – for sometimes actions speak louder than words. It may be some change in circumstances. Thus it may be alleged that the patient no longer professes the faith which underlay the advance directive.”

The statutory provision does not refer to words and actions, only what P has “done”, but it would be an odd restriction on the interpretation of “done” to exclude written or spoken words when the provision is addressed to previous written or spoken words in the form of an advance decision (an advance decision about treatment which is not life-sustaining treatment may be made verbally).

b. “clearly”: the court should not strain to find something done which is inconsistent with the advance decision remaining the individual’s fixed decision. Something done or said which could arguably be “inconsistent”, or which the court could only find might be inconsistent will not suffice.

c. “fixed”: s.25(2)(c) does not merely require something done which is inconsistent with the advance decision, but rather something done which is inconsistent with it remaining the person’s fixed decision. Fluctuating adherence to the advance decision may well be inconsistent with it remaining their fixed decision. As with the other elements of the test, whether it is inconsistent will depend on the facts of each case.

xxxxxxxxxxxxxxxxxx

Mr Justice Poole did not seem to analyse the word 'anything', and it is worth doing that, and more significantly he did not analyse the words 'his fixed decision'. I will be posting an analysis, after I've tidied it up, which includes an analysis of the logical consequences of the word HIS in 'his fixed decision'. But in brief the analysis is as follows. Section 24 of the Act, makes it clear that the ADRT belongs only to the capacitous person who makes it. I consider that an ADRT is only 'his decision' while the person is still capacitous, if we look at section 24 - and, on that basis, an ADRT isn't 'his decision' once the person has lost capacity. So, I think the word 'his' in section 25(2)(c) implies that the 'he' who has 'done anything' in section 25(2)(c), must be 'the capacitous P' and cannot be 'the incapacitous P': it logically follows, that the things we can consider in 25(2)(c) can only be things which happened while P was still capacitous.

I have quickly cobbled together something which I hope is a little more coherent (I'm also hoping that my awful standard of proof-reading has not left any typos, etc, in it!), and I'm publishing it mainly in the hope of some discussion.

In particular - how should an Advance Decision be described, for normal readers, now? I'm sure you usually currently read what amounts to 'If you want to make a refusal of a treatment legally-binding if you have lost the mental capacity to refuse it at the time, then you can create an Advance Decision'.

But, how can we explain what an ADRT is, if section 25(2)(c) is being used more than very infrequently?

DRAT! It has taken me several days, to notice that I typed 25(4)(c) in this thread's title instead of 25(2)(c) !!!!!!!

Apologies in advance, if horrible things happen when I paste this into DiC. I want to see, what the public are being told about Advance Decisions. I’ve copied-and-pasted material from websites, and tried to turn the text into Caibri size 11 in plain black text (not with 100% success). If this pastes at all readably is not something I can know until after I’ve pressed ‘post’ – but, I hope it might be useful.

There is an NHS (England) webpage at:
https://www.nhs.uk/conditions/end-of-life-care/advance-decision-to-refuse-treatment/#:~:text=What%20is%20an%20advance%20decision,some%20time%20in%20the%20future.

It starts with ‘What is an advance decision? An advance decision (sometimes known as an advance decision to refuse treatment, an ADRT, or a living will) is a decision you can make now to refuse a specific type of treatment at some time in the future.’. The information which follows becomes quite ‘legally-phrased’ and it looks correct at a quick read, but of more interest is the list of other sources for information at the end of the webpage, with URLs. Following those links, I found (quoting relevant pieces from the pages):

Age UK

An advance decision allows you to express your wishes to refuse medical treatment in future. It is sometimes referred to as a living will.
An advance decision would become relevant if there came a time when you were unable to make or communicate your own decisions.
It allows you to refuse treatment, even if this might lead to your death. An advance decision is legally binding which means that those caring for you must follow your instructions. However it will only be used if you lose the capacity to make or communicate decisions about your treatment.

Alzheimer’s Society

An advance decision allows you to refuse a specific medical treatment in particular circumstances. It only applies when you lack mental capacity to make that decision. It can make sure that you are not given treatment in the future that you do not wish to receive.
If made correctly, your advance decision is legally binding and must be respected by those treating you.

NOTE: that wording says ‘if MADE correctly’.

Compassion in Dying

Living will (advance decision)
A living will is a form which lets you refuse any medical treatments that you do not want to be given in the future.

The link to Dying Matters seems to then go to a Hospice Uk page, if you look for Advance Decisions, and we find what follows.

Making decisions about treatment

Your advance care plan can include refusing life-prolonging treatments.
You can refuse any treatments except basic care, which includes nursing care, pain relief, relief of other symptoms, and the offer of food or drink by mouth. This can also be referred to as comfort care. There is more information about this on this page [link]
If you live in England and Wales you can make an advance decision to refuse treatment (ADRT), or an advance directive if you are in Scotland.
In Northern Ireland, an ADRT is legally binding (governed by common law instead of an Act) if it is valid and applicable to the particular situation. This means those providing care, support or treatment must follow an ADRT provided that they know about it.
The ADRT must be in writing, and signed by you and a witness for doctors and nurses to recognise it as a legal document. It is a good idea to speak to a healthcare professional about your choices before making decisions about refusing treatment.
In the ADRT you can say:
•which treatments you don't want
•in what circumstances you don’t want treatment
•that you refuse treatment that could potentially keep you alive (known as life-sustaining or life-prolonging treatment). These include resuscitation, artificial feeding and hydration given by a tube, breathing with a ventilator, and intravenous medicine

Healthtalk

Many of the people we talked to were unsure what an Advance Decision ( also known as an Advance Decision to Refuse Treatment, ADRT or a “living will”) was, whether it was legally binding, how it differed from a normal will and how they could go about getting one. Only a minority of those interviewed said that they definitely intended making an ADRT. Of those who did, some had the paperwork assembled already while others were putting it off until later, or waiting for a suitable occasion to discuss it with family.

An Advance Decision allows a person to make a legally binding refusal of medical treatment in advance of a time when they lose the ability to make the decisions for themselves (Mental Capacity Act 2005). It can be used to set out the specific circumstances in which a person would not want a treatment to be given, or when a treatment should be stopped. It can be used to refuse any treatment, including life-sustaining treatment such as resuscitation, breathing machines, antibiotics or feeding tubes. An Advance Decision will only come into effect if a person loses the capacity to make the decisions for themselves. (See Compassion in Dying for more about advance decisions.)

Macmillan

What is an advance decision to refuse treatment (ADRT)?
An advance decision to refuse treatment (ADRT) is a written statement of your wishes to refuse a certain treatment in a specific situation. It is a way of making sure everyone knows what treatments you do not want to have, if you become unable to make your own decisions. It will only be used if you cannot make or communicate a decision for yourself.
For example, you may decide one of the following things:
•If your illness cannot be cured and you become very unwell after having all possible treatment, you do not want to be kept alive by being fed through a feeding tube or have fluids through a drip.
•If your condition and quality of life is not improving and is getting worse while you are being fed through a feeding tube or having fluids through a drip, you do not want these treatments to continue.
•If you are very ill and only expected to live for a few days, you do not want to be given antibiotics for an infection.
We have an example below of how some of this information could be written in an ADRT document.
It is important to be as clear as possible about:
•the treatment you would like to refuse
•the circumstances when you would like your ADRT to apply.
It is helpful to include as much detail as possible to make your wishes clear to anyone reading the document. This will help them decide whether your ADRT meets the legal requirements of the Mental Capacity Act 2005. If it does, it is legally binding. This means it must be followed by your healthcare team, if they know about it.

MIND

Its webpage is quite complicated. We are told this.

An advance decision is a statement of instructions about what medical and healthcare treatment you want to refuse in the future, in case you lose the capacity to make these decisions. For example, you could use it to say you do not wish to be resuscitated if you develop certain medical conditions in the future.
You can only make an advance decision if:
•you have the capacity to make those decisions now
•you are an adult (at least 18 years old).
Do health professionals have to follow my advance decision?
Generally, yes. An advance decision will be legally binding, and must be followed by health professionals, if you have made a clear and valid advance decision and you have followed the procedures set out in the Mental Capacity Act.

There is a long NHS England PDF at:

https://www.england.nhs.uk/improvement-hub/wp-content/uploads/sites/44/2017/11/Advance-Decisions-to-Refuse-Treatment-Guide.pdf

That one, does include section 25(4)(c) although it doesn’t actually mention the section. The PDF is 44 pages long, and was published by the National End of Life Care Programme in 2013. It starts by telling us it is ‘A guide for health and
social care professionals’.

We are told (on page7) under ‘IS THE ADVANCE DECISION VALID’
Has the person done anything that is clearly inconsistent with the advance decision remaining his/her fixed decision?
YES: This is not a valid advance decision. It is important to identify what the person has done, discuss this with anybody close to the person, explain why this is inconsistent with the advance decision remaining his/her fixed decision, and record your reasons.

It doesn't seem to me, that most of the online material which on the face of it, explains to the lay public what an Advance Decision is, alerts people, patients and relatives to section 25(2)(c). That long 'NHS England' PDF which is AIMED AT PROFESSIONALS does - but I don't think I've seen anywhere yet, which points out (as I've explained in my PDF) that if it is created validly, then it must be 'clear' at what particular point-in-time an Advance Decision subsequently became invalid by means of section 25(2)(c). From the long NHS England PDF:

'It is important to identify what the person has done, discuss this with anybody close to the person, explain why this is inconsistent with the advance decision remaining his/her fixed decision, and record your reasons.'

The 'what' in there, is what I've referred to as the thing which 'triggers the invalidity' - and in that sentence, what I am reading is 'It is important to identify what the person has done, and explain why this is inconsistent with the advance decision remaining his/her fixed decision'.

The talking to those close to the patient, and recording in records, stand aside from the actual logic of the 'what triggered the invalidity of the ADRT'.

I found a few typos in the PDF you can download from my 06/03/23 post.

This is a version with the typos I spotted corrected, and with a few minor improvements as well. In particular, towards the end this version includes:

End-of-Life-at-Home is not similar to a court ruling being made by a judge: at home, we will either have genuine collaboration between family-carers, relatives, doctors, nurses and 999 paramedics, or else we will have a combination of chaos and conflict in many situations. And I don’t want people who are dying, to be dying surrounded by conflict and chaos.

I’m annoyed with myself at the moment, and I apologise. I corrected a sentence in v1 of the PDF, posted ‘an improved version’ yesterday as v2, then yesterday evening realised I had made a mistake within my ‘corrected sentence’ by inserting the word ‘clearly’ in the wrong place. It turns out, that I don’t seem to have saved the document as the Word file which I converted to version 2 either: SIGH!

Anyway, I’ve decided to hold-off on posting a version 3, until after I have perhaps got a bit of feedback: in particular, I would like to know how we should describe an Advance Decision to ‘normal people’ if section 25(2)(c) is to be used more than VERY INFREQUENTLY to make a previously-valid ADRT invalid. I honestly can’t see how to do that, myself.

The sentence I got wrong in version 2, is at the bottom of page 19, where I said what I think a section in Mr Justice Poole’s ruling should have said. What I wrote is:
53. The Trust asserts that the advance decision is not now valid because s.25(2)(c) is made out. I treat the burden of proof as being on the Trust which must establish that Mrs W has done something inconsistent with the advance decision clearly remaining her fixed decision.
I should have written – and if you read the PDF as a whole, it is pretty-obvious that I am in fact saying this [and not what I actually wrote at the bottom of page 19]:
53. The Trust asserts that the advance decision is not now valid because s.25(2)(c) is made out. I treat the burden of proof as being on the Trust which must establish that Mrs W has done something clearly inconsistent with the advance decision remaining her fixed decision.

It does seem to me, that Mr Justice Poole is saying that instead of section 25(2)(c) saying what it says in the Act, which is
(c) has done anything else CLEARLY inconsistent with the advance decision remaining his fixed decision.
Mr Justice Poole is claiming that section (c) should be read as saying
(c) has done anything else PROBABLY inconsistent with the advance decision remaining his fixed decision.
Those sentences are different – CLEARLY is surely a stronger ‘test’ than PROBABLY. Mr Justice Poole seems to be asserting that the test-of-certainty is the balance-of-probabilities test, whereas I think ‘clearly’ fits better with the beyond-a-reasonable-doubt ‘test’. And how ‘clearly’ is interpreted is important.

As it happens, I think the entire issue of what ‘clearly’ means is complicated by another factor, if a disagreement is taking place before the treatment would actually be considered – i.e. if the validity of an advance decision is being considered as part of Future Care Planning. Because, it seems to me that while in principle everyone needs to know the level-of-certainty required by section 25(2)(c), IN PRACTICE whatever level it is set at, people will simply say ‘I don’t think what we know passes the test – I don’t think 25(2)(c) has made the ADRT invalid’, or ‘I think 25(2)(c) hasn’t been proven to invalidate the ADRT’. That leaves ‘well – send it to court’ but we DON’T WANT lots and lots of ‘normal end-of-life situations’ ‘going to court’.
I’m also not at all persuaded that a judge has the authority to change a word which is in a Statute – ‘clearly’ – into a different word, here ‘probably’. That isn’t explaining a ‘gap’ within the Act, or explaining an ‘ambiguity’: if like me you think that obviously ‘clearly is a stronger test than probably’, Mr Justice Poole has stated that ‘clearly is the same as probably’. That is the only thing you CANNOT DO, if you are explaining ‘by how much, clearly is a stronger test than probably’.

I must admit, that so far I haven’t managed to get any responses (beyond one tweet, which seems to agree with me about the ‘… that conversation looks like something out of Monty Python’ issue) about either Mr Justice Poole’s ruling, or how we can explain the effect of making an Advance Decision to ‘normal people’ if section 25(2)(c) is widely used to invalidate Advance Decisions.

The PDF contains the results of my investigations on Twitter, about the difference between the words 'clearly' and 'probably', in the context of 'Poole J seems to have altered 'clearly inconsistent with' to 'probably inconsistent with' in his 'application of' section 25(2)(c). It is a short PDF, and if you are interested in this issue then you should probably read it - but selected extracts from the PDF follow:

Since I wrote the first PDF, I have been asking people if they think ‘clearly’ can be expressed as ‘probably’. So far, the huge majority of people seem to be saying ‘no – the words mean different things’ – which is my own position.

I don’t believe that a judge, such as Poole J, has the legal authority to alter a ‘test of certainty’ which is stated within a Statute – so I don’t believe anyone, except Parliament, can alter the word ‘clearly’ in 25(2)(c) to the word ‘probably’. Probably, means 51/49 – and whatever clearly means, be it 99/1, 95/5, 80/20 or whatever, it is a stronger test than 51/49.

This isn’t a case of a Statute which says something must be decided, but without stating what degree of certainty is required – when judges can clarify the situation: 25(2)(c) says ‘clearly’.

I put a poll on Twitter.

Answers from all welcomed. Please retweet. Do the phrases ‘clearly inconsistent with’ and ‘probably inconsistent with’ mean the same thing, or different things?
The two answers people could vote for were:

They mean the same thing

They don’t mean the same

There were 31 votes cast, and 592 ‘views’ of the poll. All 31 votes cast (100%) were for ‘They don’t mean the same’.

I exchanged some Twitter direct messages with a doctor.

Me: Mr Justice Poole seems to think he can change ‘clearly inconsistent with’ in MCA 25(2)(c) to ‘probably inconsistent with’ – and I don’t think he can do that. I think clearly must be a stronger test than probably.

The doctor: 100% agree. Clearly to my mind, anyway, means distinct and without doubt. Probably means that no one is certain. Clearly means Yes. Probably means neither yes or no.

I asked this on Twitter:

A question for Twitter (always risky!). Do people consider the words ‘clearly’ and ‘probably’ as carrying the same meaning – or do they mean two different things?

@MikeAlphaOne replied:
‘Clearly’ means there is substantial evidence to support it, ‘probably’ means there is very little evidence.

It seems to me, that almost everyone believes that ‘clearly’ indicates a greater-level-of-certainty than ‘probably’. So, in my opinion, Poole J was in error when, in his ruling, he:

1)[it appears] Replaced the word ‘clearly’ in section 25(2)(c) with the word ‘probably’;
2)Applied section 25(2)(c) as if it is a best-interests determination, when in fact you need to identify which event made the ADRT invalid, and when the transition from validity to invalidity occurred;
3)Suggested that 25(2)(c) only applies after the patient has lost capacity.

End-of-Life-at-Home is not similar to a court ruling being made by a judge: at home, we will either have genuine collaboration between family-carers, relatives, doctors, nurses and 999 paramedics, or else we will have a combination of chaos and conflict in many situations. And I don’t want people who are dying, to be dying surrounded by conflict and chaos. We also don’t want applications for court rulings to be routinely-made during EoL-at-Home, and ‘planning ahead’ which is encouraged by the NHS means that often section 25(2)(c) would be considered before the Advance Decision would be ‘used’. If you believe that section 25(2)(c) is saying ‘probably inconsistent with’ instead of ‘clearly inconsistent with’, then it seems to me that there will be much more scope for disagreement, and therefore applications for court rulings. And, for cardiopulmonary resuscitation, the situation of ‘… well – it would be the clinicians who would apply/withhold the treatment and consider best interests if the Advance Decision was not valid’ isn’t true either.

If we think about ‘Covid Jab Man’ then he probably needs to include with his Advance Decision, a footnote to the effect that ‘This ADRT is my decision for after I have lost mental capacity – whether or not I accept offered Covid vaccinations before I lose capacity, is an entirely different thing, and does NOT indicate ‘retraction of’ my ADRT’.

And, it is clearly unwise to ‘simply create and then set-aside’ an ADRT, as Mrs W seems to have done, because although legally that looks ‘robust’ (once created, the ADRT doesn’t need to be resigned on ‘review dates’, etc, if you simply look at the law) in reality people such as Poole J and others can question the continuing validity of your ADRT. Even ‘appoint a Welfare Attorney’ doesn’t work as well as it should: I’m considering writing a piece about ‘thwarting the authority of Legal Proxies’ because I’m thinking of this issue with Advance Decisions, section 25(2)(c) and Poole J’s Mrs W ruling, in terms of ‘Mrs W’s authority as projected in her Advance Decision being thwarted’.