Claudia Carr, Senior Lecturer, Deputy LLM Programme Leader, Hertfordshire Law School
The recent decision in M (by her litigation friend, Mrs B) v A Hospital 2017 EWCOP 19 is remarkable
in the sense that Mr Justice Peter Jackson indicated that it was no longer necessary for Trusts and
relatives to refer a case to the courts where decisions of withdrawing and withholding life sustaining
treatment from patients in minimally conscious states (MCS) and where all parties agree it is no longer in the patient’s best interests to receive life sustaining clinical artificial nutrition and hydration (CANH).
The case concerned M, who suffered from Huntington’s disease, an inherited fatal neurological condition with no cure. In 1994, M became a permanent inpatient at hospital and by 2003, she was entirely dependent on clinical artificial nutrition and hydration (CANH). Even though the clinicians and the relatives agreed that continuing CANH was not in her continued best interests, M’s case proceeded to the Court of Protection for consideration. The need to go to Court for a determination was largely due to Practice Direction 9E which requires decisions about proposed withdrawing and withholding of CANH from patients in a permanent vegetative state (PVS) or minimally conscious state (MCS) to go before the court. This requirement has been in place since the seminal case of Airedale NHS Trust v Bland 1993 AC 789 which stated that until a body of practice had been well established for deciding cases of this nature, all cases must go before the court. At this time, however, the condition of minimally conscious state had not been recognised but in W v M 2011 EWHC 2443 (Fam), the earliest case to deal with patients in minimally conscious states, the requirement was confirmed.
Whether of not this requirement should remain was referred to in detail by Mr Justice Jackson in Re M (Withdrawal of Treatment: Need for Proceedings). In para 29, he stated that the Court of Protection Rules Committee, chaired by Mr Justice Charles had met and received a wide range of views and recommended removing the practice direction and establishing a multi-disciplinary body to give guidance about the type of cases that should be taken to court. Moreover, the court referred to the judgment in Director of Legal Aid Casework v Briggs 2017 EWCA Civ 1169, where it was stated (paragraph 108)
‘If the medical treatment proposed is not in dispute, then regardless of whether it involves the withdrawal of treatment from a person who is in a minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interest and can be taken by the treating doctors who then have an immunity pursuant to section 5 MCA’.
However, where the clinicians and relatives disagree in relation to medical treatment where a person lacks capacity, in particular where there is doubt as to whether CANH should be withdrawn, then the matter should be referred to the court.
At this juncture, it is worth exploring how the best interests of a patient are determined. Although this is complex and the subject of many previous court decisions, where a patient lacks capacity to consent or refuse medical treatment, the court will act in the patient’s best interests as required by the Mental Capacity Act 2005 (MCA).
The starting point is expressed in section 1(5) that where a person is unable to make a decision for herself, there is an obligation to act in her best interests. Where a decision relates to life sustaining treatment, the person making the decision must not be motivated by a desire to bring about death s4(5). Importantly under s4(6), when determining what is in her patient’s best interests, all relevant circumstances are taken into account, including ‘the person’s past and present feelings’ and the ‘beliefs and values that would be likely to influence her decision’ if she had capacity. In Re M, it was relevant but not determinative that her family said in evidence that ‘she would not have wanted to be kept alive with no hope of recovery or improvement’
Although there is a strong presumption in the preservation of life, it is not an absolute principle and the earlier case of Aintree v James 2013 UKSC 6 confirmed that it will not always be in the patient’s best interests to receive life sustaining treatment, yet every case is different. At paragraph 39 Baroness Hale made the following statement which has been referred to and applied in a number of subsequent cases:
‘The most that can be said therefore, is that in considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be’
Essentially, each case is fact specific but unquestionably subjectively assessed.
In Re M, Mr Justice Jackson confirmed that the State’s obligation under Article 2 (the right to life) no longer requires court oversight. PVS/MCS cases simply represent a specific type of case where withdrawing medical treatment is concerned but, there are many cases where life sustaining treatment is discontinued and an application to the court is not mandated. However, the Court of Protection will remain the port of call where there is a disagreement between the clinician and the relatives as to the patient’s best interests as every case is fact specific and the court will always assist with such important determinations.
The most recent judgment in this most sensitive of areas of law is NHS Trust v Y (By his litigation friend, the Official Solicitor) 2017 EWHC 2886. This was a claim for a declaration that there was no obligation to apply to the Court for withdrawal of CANH from a patient in a prolonged disorder of consciousness where the clinical team and the family agreed that it was not in Y’s best interest to continue to receive life sustaining treatment and that, if CANH were to be withdrawn, there would be no civil liability of criminal repercussions. In the absence of an advance decision (which if valid and applicable would have to be respected) and the wishes of Y’s family that he would not wish to be kept alive in that way, together with medical evidence that supported removal of CANH, the court accepted that it was not in Y’s best interests for CANH to continue and could be withdrawn.
Mrs Justice O’Farrell further commented that Re M ‘establishes that where the clinicians have followed the MCA and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court’
On the face of it, this seems to now be settled law and appears to be the correct approach. However, Re Y was a case before the High Court and it is essential there is definitive statement from the Supreme court where withdrawing and withdrawing life sustaining treatment will lead to a patient’s death. Where the patient does not have an advance decision, relatives will no longer need to take cases before the court with all the associated stress, time and costs. At the same time, the patient will continue to receive CANH, often in cases where it is no longer appropriate and risks interfering with the patient’s bodily integrity. However, there cannot be room for error, the stakes of life and death are simply too high but equally, clinicians need to be sure that any action they may take in withdrawing life sustaining treatment falls squarely within the law and the protection of section 5 MCA.