Persons who lack capacity - Best interest - European Convention on Human Rights

Re M: CoP (Mr Justice Baker): 28 September 2011

The applicant, W, was the mother of M, the first respondent. M had lapsed into a coma in 2003, and it had shortly after been discovered that she had suffered viral encephalitis, which had left her with extensive and irreparable brain damage. Since 2003, she had been in a minimally conscious state (MCS), which was slightly higher than a permanent vegetative state (VS).

Her status had been assessed by methods called ‘Sensory Modality Assessment and Rehabilitation Technique’ (Smart) and ‘Wessex Head Injury Matrix’ (Whim). She was wholly dependent on others for her care, and since 2003 had been fed artificially via a gastrostomy tube. She was further subject to a ‘do not resuscitate’ order. In January 2007, the applicant applied to the Family Division for a declaration that M lacked capacity to make decisions as to future medical treatment, and a further declaration that the doctors could legitimately discontinue and withhold all life-sustaining treatment including artificial nutrition and hydration (ANH). In determining the issue, the court heard the evidence of S, M’s partner, and B, her sister, as well as expert medical testimony.

The claimant contended that it was not in M’s interest to be kept alive by artificial means. The first respondent contended that two issues arose: (i) whether it was in M’s best interests that all life-sustaining treatment and medical support be withdrawn and withheld; and (ii) if it was in M’s best interest to continue life-sustaining treatment, including ANH, what future management would be in her best interests. The parties agreed that the court should deliver a judgment on the first issue and reconvene a hearing to discuss the second issue depending on the outcome of the first. The claim would be dismissed.

The decisive factor in the case was the importance of preserving life. On the evidence, M’s overall experiences were not clearly negative, and there were positive elements in her life. Furthermore, there was a reasonable prospect that M’s positive experiences could be extended by changes to her care plan to carefully expose her to increased stimulation.

The care plan would require a radical review in future. It would be further appropriate for the court to make a declaration that the ‘do not resuscitate’ order be continued. In the circumstances, it would be inappropriate for M to receive cardio-pulmonary resuscitation, having regard to the benefits and burdens that would involve. As far as other treatment was concerned, it would be appropriate to leave such judgements to the treating clinicians, in consultation with family members and carers.

Consequently, it would be impossible for the court to determine whether it would be in M’s future best interests for specific treatment to be given (see [249]-[255] of the judgment).

It would not be in M’s best interests for artificial nutrition and hydration to be withdrawn (see [9] of the judgment). F, Re [1990] 2 AC 1 applied; Airedale NHS Trust v Bland [1993] 1 All ER 821 applied; W Healthcare NHS Trust v H [2005] All ER (D) 94 (Jan) considered; R (on the application of Burke) v General Medical Council [2005] All ER (D) 445 (Jul) considered; G(TJ), Re [2010] All ER (D) 218 (Nov) considered.

Per curiam: The court made observations for use in future, similar, cases. First, it was important to reiterate that a decision to withhold or withdraw ANH from a person in VS or MCS had to be referred to the court, as per paragraph 5 of COP Practice Direction 9E. All such applications had to be made to a High Court judge and good practice would require them to be allocated at the earliest point to one judge who would be responsible for case management and ultimately conduct the final hearing.

Second, the case had shown the vital role played by the formal assessment tools Smart and Whim. Since it was possible to envisage proceedings being brought to withdraw life-sustaining treatment where, and only where, the patient was in VS, it was vital that every step be taken to diagnose the patient’s true condition before any application was made to the court. In future cases, no order authorising the withdrawal of life-sustaining treatment ought to be made unless: (i) a SMART assessment had been carried out; and, (ii) the patient had been diagnosed as being in a VS state. It would be possible for an assessment scale to be used in place of the Whim, provided it became validated in the medical literature for tracking a person’s recovery through the MCS.

Third, it was alarming, given the nature of the issues in the case, that public funding had not been available to members of the family. Were costs to oblige parties in future cases to appear unrepresented, there was a risk that their rights under article 6 of the European Convention on Human Rights would be infringed.

Finally, provided that the privacy of the individuals concerned be respected, it was important that decisions such as the instant case be reported freely. They dealt with important questions whose answers needed to be conveyed to the public, and hence it was in the public interest that they be promulgated freely.

Vikram Sachdeva and Victoria Butler-Cole (instructed by Irwin Mitchell) for W; Caroline Harry Thomas QC and Katherine Apps (instructed by the Official Solicitor) for M; Bridget Dolan (instructed by Beachcroft) for the Primary Care Trust; S was present for part of the hearing but not ­represented.