Abstract

When the clinician and patient are unable to reconcile differences over treatment, does this mean the latter lacks capacity to decide in such matters? Wellesleyet alanalyse the legal judgements in the case of Ms Sudiksha Thirumalesh where, on the particulars, the Court of Protection answered yes, only for the Court of Appeal to disagree. The authors highlight concerns about using isolated false belief as an indicator of incapacity and advise that such matters may be better resolved by greater discussion of the benefits and burdens of treatment, alongside consideration of their costs. Here, I suggest that a disability perspective is also helpful to such cases, recognising that this was a disagreement from which the patient couldn't walk away. Disability means that particular care is required when considering the burdens and benefits of treatment as these may vary widely in the eye of the beholder. Second, the costs of litigation are particularly high when a disabled person, with life-limiting illness, is left feeling they are using precious time and energy arguing for their existence. Third, any such legal judgments ought to make clear what reasonable adjustments have been offered to include the disabled person in proceedings. Fourth, and relatedly, such disputes should be attentive to the significant risk of epistemic injustice, where disabled patients find themselves less believed, in part because the ‘able-bodied’ have not shared their experiences. Together, these considerations (i) add to the call made by Wellesleyet alfor better discussions and (ii) suggest that early involvement of Rehabilitation Medicine, with expertise in disability and related ethics, could offer an important means to reduce the need for such litigation in the future.