Now that I've calmed down a bit, I've had a look at the six cases involved in the Ombudsman's investigation. They are all appalling, but one that strikes me is the case of Martin Ryan, a 43 year old who had Down's. He was taken into hospital following a stroke, and as is normal in stroke, was unable to swallow food or fluids because stroke tends to paralyse the throat muscles. The usual procedure is to attach a drip or peg for feeding, but this did not happen. Instead Martin had a nil by mouth instruction placed on his case, and he was left without food for 26 days. By the time other staff were alerted to his case and had arranged an operating space to insert a peg, Martin had developed pnuemonia. He died shortly afterwards. The Ombudsman ruled in his parents' favour and awarded £40 000 compensation. However, the staff involved were not named in the report and if his parents take this to court, they could have a fight on their hands. That is because of the Mental Capacity Act and what it has to say about food and fluids provided by intravenous means.
The Mental Capacity Act came into law in 2007. Initially it had started off as a bill with wide support, because it sought to provide advocates for people who were mentally incapacitated. As the bill progressed however, more bits were added to it. Two proposals attracted a great deal of controversy. One was that permission could be given for medical research to be carried out on the mentally incapacitated if it benefited them or the disease that they suffered from. All attempts to change 'or' to 'and', failed. The second proposal that caused a huge reaction was the proposal to redefine intravenous food and fluids from 'basic care' to 'medical treatment.' This meant that drips and the like were redefined as medication and therefore could be administered or withdrawn as such; it was no longer a sine qua non under the terms of basic care.
The case that fronted this debate was that of Tony Bland, who was in PVS for four years after the Hillsborough disaster, and the idea of this legislation was to allow those in PVS to die, if that was in their 'best interests'. But those who were opposed to the bill pointed out that in the case of stroke, where someone could not swallow and could not articulate what they wanted, that this legislation could be abused. The non-treatment of elderly people with stroke by leaving them without a drip was becoming increasingly common in hospitals and it was felt that this legislation would give legitimacy to this kind of abuse. I fear that that is exactly what happened to Martin Evans. The fact that he was 43 with Down's would have militated against him, because the average age of death for someone with Down's is 50. The report states that because he had learning difficulties, the staff felt that they would not be able to attach feeding apparatus. But they didn't even try, not once.
He was not even administed aspirin, which is a standard treatment for stroke.
Now here's the problem. This happened in 2005, so a court might rule that the law re drips as basic care comes into play, and that therefore the law was broken. But if a court uses the Mental Capacity act, then it can be argued completely differently. The drip is medical treatment, so there is no legal compulsion for its provision. The staff might argue that it was in Martin's 'best interests' to avoid the possible distress that trying to fit a peg might involve for someone of his understanding. They might also point out that he was 43 and old by Down's standards and treating him for his stroke was not in his 'best interests' either. Which just goes to show what a total crock of s*** this particular part of the Mental Capacity Act is.
Iain Duncan Smith predicted in one of the debates that the Mental Capacity Act would return to Parliament for amendment. I think he was right and that the legislators need to close this particular loophole, or we will see more of this and be unable to stop it. In the meantime, I wish Martin's parents well, and hope that they are successful in their campaign for justice.
