Impact of failure to adhere to MCA requirements in relation to end-of-life treatment and detention

A vulnerable, elderly, patient, found to lack mental capacity, was subjected to multiple life-limiting decisions. Restrictions in care and treatment were imposed, and a palliative/passive/end of life approach was taken. There were no best interests meetings, no formal records of decision making processes, and no consultation with or disclosure to the family. Those treating him never established with his family his known wishes, his principles, what’s important to him, or what he would decide faced with such a question. He was unlawfully detained - detained by virtue of nature of care provided (Cheshire West), unlawfully because no authorisation was granted within the statutory time limits. They therefore did not adhere to the requirements under the MCA.

What effect does this have on the decisions which were made? Did they fall outside the remit of legitimate medical approach? Were they unlawfully made? Were the actions taken unlawful? Was there criminal assault and conspiracy to cause fatal harm?

In legal and criminal terms, what effect does the unlawful detention have?

You describe unlawful practice in terms of the Mental Capacity Act, but there is a world of difference from a breach of that law and your statement “conspiracy to cause fatal harm” which would appear to be criminal behaviour. A solicitor would be able to provide further advice.


Agreed. Raising the question - at what point does repeated failure to adhere to MCA requirements, become a “criminal assault and conspiracy to cause fatal harm” ? Does repeated failure to adhere to MCA requirements – in fact – point to a wilful intent to subvert process?…
When there is wilful and repeated subversion of all required MCA processes - effectively to evade challenge (similar to case Esegbona v Kings College Hospital Trust 2019), so that secretive, undisclosed approach, can be imposed - certain to shorten life /hasten death –in a similar way that Liverpool Care Pathway was applied - through restriction /ceiling of care /passive /palliative approach /dehydration /allowing complication to take hold unchecked?
It is the failure to adhere to the required lawful medico /legal processes, of disclosure /consultation /consideration of known wishes /best interest meeting /& opportunity for informed challenge to take place - that risk taking this beyond the world of potentially legitimate medical approach – to criminal acts - of wilful neglect, gross negligence, and conspiracy to cause fatal harm, I suggest?
Life surely cannot be ended in this furtive and casual way, without patient (or at least closest family members where capacity is an issue), aware of any such approach and equipped to object? In short, it cannot be lawful medical approach – when the required duties to ensure that and safeguard patient’s rights – have been persistently evaded and subverted, with evident intent?

I don’t know the answer.

In detention cases, a claimant won’t get far if it can be shown that, had the correct procedure been followed, the end result would have been the same. This definitely applies to MHA detention (see Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 about nominal damages) and, though I’ve not read it recently, I think in Esegbona v King’s College Hospital NHS Foundation Trust [2019] EWHC 77 (QB) the judge thought it relevant that the outcome might have been different had the MCA been followed.

An MCA/inquests/human rights expert might be able to add something here.