Advance declarations to withdraw treatment
The recent case of An NHS Trust v D  EWHC 885 (COP), has highlighted the problems of expressing advance wishes to end life-sustaining treatment, and has addressed the issue of the costs of the Official Solicitor.
This case concerned an application for a declaration that it was lawful and in the best interests of a patient, D, to withdraw active medical treatment, including specifically artificial nutrition and hydration, albeit that this would lead to the death of D.
The application was made by the Trust, but was supported by D’s family and friends, and by all the medical staff looking after him. It was also consistent with the views of the expert witnesses and of the Official Solicitor.
D had previously developed a swelling in his thyroid gland and underwent an operation in May 2011. A further operation was needed and was undertaken in July 2011, but it was found that the cancer had spread. Following a further procedure, D suffered a cardiac arrest as a result of which he also suffered associated hypoxia.
In advance of the May 2011 operation, D had drafted a letter, which was provided to his sister in law, G. The letter stated that,
“To whom it may concern: I authorise [and then G’s name and address] to act on my behalf in the event of me being unable to make decisions for whatever reason. In particular, I authorise the above to liaise with the medical profession in making decisions regarding any further medical treatment. More specifically, I refuse any medical treatment of an invasive nature (including but not restrictive to placing a feeding tube in my stomach) if said procedure is only for the purpose of extending a reduced quality of
life. By reduced quality of life, I mean one where my life would be one of a significantly reduced quality, with little or no hope of any meaningful recovery, where I would be in a nursing home/care home with little or no independence. Similarly, I would not want to be resuscitated if only to lead to a significantly reduced quality of life.”
Unfortunately, this letter had not been witnessed, and as such did not comply with Section 25 of the Mental Capacity Act 2005. The Court specifically referred to sections 25(5) and 25(6), which provide that,
(5) An advanced decision is not applicable to life-sustaining treatment unless:
The decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and
The decision and statement comply with subsection (6)
(6) A decision or statement complies with this subsection only if:
(a) it is in writing;
(b) It is signed by P or by another person in P’s presence and by P’s direction;
(c) The signature is made or acknowledged by P in the presence of a witness; and
(d) The witness signs it or acknowledges his signature in P’s presence.
The evidence before the Court was that if D continued with active medical treatment, he would have a 2 year life expectancy, but a withdrawal would bring death within 10-14 days, all the while receiving carefully planned palliative care.
Additionally, the Trust’s reasons for the application were that
(I) D is in a permanent vegetative state
(II) Continued medical treatment is of no benefit as it is futile
(III) D is unaware of himself and his surroundings and receives no benefit from life
(IV) It is not what D would want
(V) His treating clinicians, the experts, his family and friends consider it in his best interests; and
(VI) The remainder of his life, following the withdrawal of treatment, and before death will be managed appropriately.
The Court accepted these arguments and notwithstanding the deficiencies in D’s letter as regards the Mental Capacity Act, the application was granted as being in D’s best interests.
The Court was also asked to determine the issue of costs. It was held that the position had not changed from that adopted in earlier cases and that NHS bodies bringing applications for withdrawal of treatment still have to pay 50% of the costs of the Official Solicitor. The Court also recommended that the Government should fully fund the Official Solicitor who would then not have to recover costs from public bodies. However, until that point, the Courts were powerless to do anything about the position.
The case of An NHS Trust v D, illustrates that any pre-existing requests for the withdrawal of life-saving treatment must be compliant with Section 25 of the Mental Capacity Act 2005, but also that where there are strong evidential reasons for departing from this position, it is possible to achieve the same outcome notwithstanding the provisions of the Mental Capacity Act. Whilst the Court in this case was able to look past the deficiencies, it is far from certain that a similar approach will be adopted in less certain circumstances.
This case also confirms that the position on costs is unchanged, but that there is an underlying recommendation for Governmental reform in this area.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.