Given that the area law I practice can sometimes be a little, shall we say, sensitive, I always try to write with my tongue slightly in my cheek, and I usually steer away from citing statute or case law unless absolutely necessary. Today however, I find myself struggling somewhat such is the importance of the issue at hand.
Last month the Supreme Court ruled that an application may no longer be required to withdraw life- sustaining treatment for a person with a prolonged disorder of consciousness “PDOC”, more commonly known as post vegetative state.
My Y, who was an active man in his fifties, seemingly in good health, suffered a cardiac arrest resulting in severe cerebral hypoxia and extensive brain damage. He never regained consciousness and required clinically assisted nutrition and hydration, now referred to as “CANH”, to keep him alive.
Some three months later his treating physician concluded that he was suffering from PDOC, and that even if he were to regain consciousness, he would have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life. After a second opinion was obtained, both clinical team and family agreed that CANH should be withdrawn, which would result in Mr Y’s death within two to three weeks.
Let’s be clear first what the Court was asked to decide. It was not whether it was in Mr Y’s best interest that CANH be withdrawn, but rather whether or not such matters ought always to be determined by the court.
On 10 November, O’Farrel J  EWCH 2866 (QB) refused the Official Solicitor’s application for the case to be transferred to the Court of Protection, concluding that there was no common law principle that all cases concerning the withdrawal of CANH had to be sanctioned by the court, in her view, at para 52, “where the clinicians have followed the Mental Capacity Act 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 appeal the matter went to the Supreme Court, which at the end of July dismissed it, saying that neither this case, nor previous common law rulings, established a requirement for mandatory involvement of the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn.
As we will see later, the decision is in no way a new direction, though neither does it clarify this already difficult moral and ethical dilemma.
Whilst the Mental Capacity Act 2005 (MCA 2005) is the watershed in this area of law relating to people lacking capacity, it is important to look at case law preceding the MCA 2005.
In the case, Re F (Mental Patient: Sterilisation) , the House of Lords considered whether the court had jurisdiction to grant a declaration that it would not be unlawful to sterilize a woman lacking mental capacity.
This was not only a highly sensitive case, but also one which carried with it moral and ethical issues. It is worth noting that the point for reasoning was the established common law position that “a doctor cannot lawfully operate on adult patients of sound mind, or give them any other treatment involving the application of physical force….without their consent”, and if he were to do so he would commit the tort of trespass to the person, but in the case of a patient who lacked capacity…..a doctor could lawfully operate or give other treatment provided it was in the best interests of the patient.
Lord Brandon said that whilst the lawfulness of the of the treatment did not depend on the court’s approval, he identified six features that that were influential in his view:
The operation will in most cases be irreversible
Given the irreversibility, the result will be to deprive the woman of widely regarded fundamental rights of women, namely to bear children
Such deprivation gives rise to moral and emotional considerations to which many attach great importance
Without Court involvement there is a greater risk of being decided wrongly, or at least the thought of it being decided wrongly
Without Court involvement there is a risk of the operation being carried out for improper reasons or motives
The involvement of the Court serves to protect doctors performing the operation from subsequent adverse criticisms
So whilst some of the above six points would not apply to Mr Y, the court did not deter from the best interests maxim.
Another case Airedale Trust v Bland , concerned a man in a persistent vegetative state after being injured in the Hillsborough disaster. The man could not see, hear or feel and could not communicate in any way.
Over three years later the view was formed that it was appropriate to stop prolonging his life by artificial means and an application by the hospital authority was made to lawfully discontinue nutrition and hydration, which would result in his death.
Context around the decision in this case is important in that developments in technology meant some patients who might otherwise have died, could now survive. The certainties around what was life and death were now fundamentally affected, and that the manner of someone’s death might not necessarily be dictated by nature, but by human decision. Society did not then, and does not even now, speak with one voice around this issue.
Other cases followed, but both Re F and Bland certainly provoke sufficient thought to understand that this has long been a contentious issue and even today some way off being an area that is settled. I want to fast forward therefore to the current modus operandi, and the MCA 2005.
Of all the provisions of the 2005 Act offering safeguards, it is striking that a provision which is not to be found amongst them is the very point that we are discussing here. The Law Commission had even recommended in 1995 that the new statute should provide that the discontinuance of artificial sustenance to an unconscious patient with no activity in the cerebral cortex and no prospect of recovery, should in every case require the prior approval of the court.
The Mental Capacity Act 2005 Code of Practice (“the Code”), issued under section 42 of the MCA 2005, states in considering how someone’s best interests be worked out when making decisions about life-sustaining treatment, at “5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.”
That seems clear, and further at “5.33 … it states, Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests, that the desire is to leave these difficult decisions in the hands of the healthcare professionals.
But curiously then the Code departs from that approach and at Para 6.18 goes on to single out certain treatment decisions in the following terms: “6.18 Some treatment decisions are so serious that the court has to make them – unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them, or they have made a valid advance decision to refuse the proposed treatment. The Court of Protection must be asked to make decisions relating to the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS).
In the very recent case re Briggs  concerning a man in a minimally conscious state, somewhat different from Mr Y’s condition, the court recognised the tension between the practice direction which appeared to suggest all cases of withholding or withdrawing treatment in cases relating to a minimally conscious person should be brought before the court, and oddly the Code which said matters should be brought before the court where there was a doubt as to the person’s best interests, yet again demonstrating a lack of clear direction given the Code’s wording around patients in PVS.
The reality is that unsurprisingly both statute and case law are littered with inconsistencies, other than one specific point, and that is the attempt to prevent a drain on NHS trust resource, not to mention the burden on the courts themselves.
My conclusion is that in light of the recent Supreme Court ruling it is increasingly more important to to make a Lasting Power of Attorney and give clear direction around what should happen if lacking the capacity to make decisions.
Parliament seems reluctant to make the position clear for fear of creating a bottleneck, and surely for the rest of us the fear of being left at the mercy of inconclusive legislation is far too much of a burden on all concerned.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Penn Chambers Solicitors
0207 183 1485