Withdrawal of life sustaining treatment
Although it has been known for some time that an Application may be made to the Court of Protection to authorise the withdrawal of life sustaining treatment from a patient in a persistent vegetative state (“PVS”) a recent case has looked at the rather more difficult question of when this should be withdrawn from a patient whose condition was not so acute as to amount to PVS, albeit the quality of life was limited.
Patient M fell into a coma in 2003 aged 43 as a result of viral encephalitis which caused extensive and irreparable brain damage. She was in a minimally conscious state (“MCS”) with a slightly higher level of consciousness than PVS. This had been assessed by using various measures including sensory modality assessment and rehabilitation techniques (“SMART”) and “Wessex head injury matrix” (“WHIM”).
As a result of these difficulties M was wholly dependent on others for all care needs. She was fed via a gastrostomy tube. The evidence suggested that she suffered some pain (the extent of which was difficult to assess) but equally was able to respond to some stimulation.
M’s mother applied to the Court for declarations as to whether:
(a) M lacked capacity to make decisions as to future medical treatment and her doctors could legitimately withhold all life sustaining treatment including artificial nutrition and hydration (“ANH”)
(b) if it was in M’s best interest to discontinue treatment, what future management was in her best interests
The Court considered initially only the first requested declaration as the parties agreed that the second could be postponed pending a determination of the first one. Thus the Court had to consider whether it was in M’s best interests for life sustaining treatment and medical support to be withdrawn, which would include withdrawing ANH.
The court heard evidence as to M’s anticipated views of the situation in which she found herself. However, the Judge made it plain that his decision had to be based on her best interests and not what she would or might have decided had she had capacity. In this case he felt that the decisive factor was the need to preserve life and on the evidence, although M’s quality of life had many aspects that were negative, there were some positive aspects to this. There was also a prospect that the positive experiences could be enhanced by amendments to her care plan, albeit this would require a radical review.
The Judge therefore refused the declaration permitting the withholding of ANH but did make a declaration that a previous “Do Not Resuscitate” Order should be continued as, in all the circumstances, it would not be appropriate for M to receive cardiopulmonary resuscitation.
As for other treatment, the Judge felt it was appropriate to leave it to the treating clinicians in consultation with the family and carers to decide about this.
The Judge also took the opportunity to make observations on future cases:
1. A decision to withhold or withdraw ANH from a person in a PVS or MCS had to be referred to the Court for an Order and heard by a High Court Judge.
2. Applications for such Orders should not be made unless a SMART or equivalent assessment had been carried out to diagnose the patient’s disorder and, in the case of a patient diagnosed as being in MCS, a series of WHIM assessments to track the patient’s progress and recovery (if any).
3. It is usually appropriate for such cases to be reported by the media provided due respect is paid to the wishes of the family to protect their privacy.
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.