‘A Practical Guide to the Law of Medical Treatment Decisions’ by Ben Troke


Paperback: 978-1-912687-89-3
Published: September 2020
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Decisions about medical treatment can be about life and death, such as withdrawal of treatment or (not) providing CPR.  Or about quality of life, liberty and independence, which can be just as important.  But the legal (and ethical) framework around these decisions is often misunderstood, leading to distress and disputes at the very worst of times.  We have seen this in a few very high-profile cases, but there will have been untold others in private.

Should a patient always get what they want, or does “doctor know best”?  When a patient cannot make a decision for themselves, who gets to decide, and how should these decisions be made?   What is the role of so-called “next of kin” (and did you know that there’s actually no such thing)?  Can parents insist on treatment for a baby when doctors think it futile?  How are disputes in this context resolved and, better yet, how are they avoided?  And how can we act now to control what happens to us in future, when we may not be able to decide for ourselves?

For our most life-changing decisions, this is a practical guide to the law and how it really works, written to be accessible not only for lawyers, but also for clinicians, patients and anyone concerned about them.

All author’s proceeds are donated to the Alzheimer’s Society – www.alzheimers.org.uk.


Ben Troke is a solicitor and a mediator with 25 years’ experience working in health and social care, acting for the NHS and private sector providers all over the country.  His particular interest is in decisions about mental capacity, medical treatment and deprivation of liberty, he regularly deals with urgent applications to court in emergency situations. Ben is independently rated as one of the leading practitioners in the country in the Court of Protection. He currently sits on the Law and Ethics Policy Unit of the Faculty of Intensive Care Medicine, and the Law Society’s Mental Health and Disability committee, and has a decade of experience of sitting on the ethics of clinical practice committee of a large acute NHS Trust.

Ben is a partner in the healthcare team at Weightmans solicitors, and he regularly speaks at conferences and provides training, in person and online.


“The decisions that people make about medical treatment – whether for themselves or others – are always very personal and often very profound in their nature and impact. These decisions are made in a context of legal rules that, in turn, are influenced by ethics. Ben Troke brings this context alive in this carefully crafted and insightful guide. Whilst written principally for medical lawyers and clinicians, it is a very worthwhile purchase for anyone with an interest in medical treatment decisions.”
– Dr Austen Garwood-Gowers is an Associate Professor in medical law at Nottingham Law School

“A thoroughly helpful book outlining how complex law should work in practice. The author’s knowledge, experience and passion shines through resulting in a ‘law book’ that is easier than the norm to read. This book should be top of the reading list of anyone working or wishing to work in this field.”
– Sam Cox, Alzheimer’s Society (Knowledge Officer (Legal and Welfare Rights)

‘This book was rather excellent … There is a danger of this being a dry subject, but I quickly warmed to Troke’s easy writing style – clear explanations and a light touch.”
– Review by John Larkin, Medical Journalists’ Association

“This informative, accessible book is much needed by clinicians, who will welcome its breadth, legal accuracy and clarity.”
– Rachel Griffiths MBE, Mental capacity and human rights consultant

“Ben Troke … succeeds triumphantly in his goal, in a book which is accessible, accurate, timely (including discussion of COVID-19), personal (in the right way), and even in places surprisingly funny.”
Mental Capacity Law and Policy

“Not only is this book a worthwhile read because of its accessible style, there are also some useful insights for both medics and legal practitioners, such as the research which observed that the better a physician’s communication style and soft skills, the less likely they were to have been sued by their patients.”
Solicitors For the Elderly


Chapter 1 – Context
Chapter 2 – Choices Available
Chapter 3 – Consent – Adults Making Choices
Chapter 4 – Capacity Part A – Able to Make This Decision
Chapter 5 – Capacity Part B – Best interests and Who Decides
Chapter 5.5 – Capacity Part C – Capacity in the Time of Coronavirus
Chapter 6 – Children and Parents
Chapter 7 – Conflict Resolution and Court
Chapter 8 – Conclusions – and Taking Control
Appendix 1 – Priorities in a Pandemic
Appendix 2 – Resources
Legal Glossary