Mental health law briefing 200 – Case update: Withholding life-sustaining treatment
There have been two recent cases where the court has declared it lawful to withhold life-sustaining treatment from non-capacitated patients in extremis. These cases are considered below.
An NHS Foundation Trust v M and K  EWHC 2402 (COP)
This case concerned a 22 year old man, M, who was born with a congenital abnormality of the brain called holoprosencephaly. This had caused considerable loss of brain substance, resulting in cerebral palsy and severe learning disabilities. M had never been able to walk and suffered from many medical complications, including feeding difficulties. He was fed via a percutaneous endoscopic gastrostomy (PEG) tube. For most of his life, M had been cared for by his aunt, K.
From June 2010 onwards, M’s condition took a downward turn. By early 2013, M was severely malnourished and was at risk of dying because of this.
As a result, the Trust and the Official Solicitor sought urgent declarations from the court that:
- M should not be resuscitated;
- M should not receive intensive care treatment (specifically that he should not be mechanically ventilated); and
- M should not be given antibiotics in the event of contracting pneumonia.
K, M’s aunt, agreed with the declaration in relation to resuscitation, but said that she wanted M to be given “every chance”, and that should include intensive care treatment. As M clearly lacked the capacity to litigate or to make decisions in relation to his medical treatment, the court was called upon to make a decision as to what was in M’s best interests.
Mrs Justice King heard extensive evidence in relation to M’s nutritional state. The evidence was that M was at severe risk of dying because he was no longer able to take up nutrients or put on weight. There was a concern that maximum feeding through the PEG tube would result in aspiration pneumonia and may not result in an improvement in his nutritional state. The parties therefore agreed that M’s calories would be reduced and the flow slowed down on the understanding that, in the event this resulted in pneumonia, this would not be treated with antibiotics.
In relation to CPR, the medical view was that any attempts to resuscitate would almost certainly fail, and that CPR was “beyond futile”. If M were put on a ventilator, the medical opinion was that it would then be impossible to wean him off because he was so near to the end of his life. Ventilation was therefore considered to be a cruel trauma for M, in that it would prolong his death rather than his life.
When considering what was in M’s best interest, Mrs Justice King referred to the case of Aintree University Hospitals NHS Foundation Trust v DJ and Others  EWCA Civ 65, where Wald J said the following:
“How should someone’s best interests be worked out when making decisions about life sustaining treatment? It is up to the doctor or healthcare professional providing treatment to assess whether the treatment is life-sustaining in each particular situation…That is not to say that the doctors determine the outcome, for it is the court that must decide where there is a dispute about it and the court will always scrutinise medical evidence with scrupulous care…
The fact that I have concluded that treatment would be futile, overly burdensome and that there is no prospect of recovery is but one pointer to where the best interests of DJ lie. Not to treat him may be in his best medical interests, but the question remains whether it is in his best interests overall, and here I have to accept that the term “best interests” encompasses medical, emotional and all other welfare issues: see Wall LJ in Portsmouth Hospitals NHS Trust v Wyatt  EWCA Civ 1181 at  following Re A  1 FLR 549.
The court must, pursuant to section 4(6) [of the Mental Capacity Act] consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings, his beliefs and values, and the other factors he would be likely to consider if he was able to do so. The court must take into account the views of those caring for DJ as to what would be in his best interests, and particularly what they consider to be his real wishes and feelings.”
Mrs Justice King went on to apply the words of Mr Justice Wald in this case, in order to determine what was in M’s best interests.
In relation to CPR, Mrs Justice King found that this would not secure therapeutic benefit for M, as it would not have the real prospect of curing, or at least palliating, the life threatening illness from which M suffered. It would also likely cause painful rib fractures and further loss of cognitive function. Mrs Justice King therefore made a declaration that M should not be resuscitated.
In relation to intensive care treatment, although M’s aunt wanted M to be given “every chance”, Mrs Justice King said that she was satisfied there would be no therapeutic benefit to M to be ventilated. Such treatment would offer him no prospect of a cure and would subject him to unnecessary discomfort and indignity. Mrs Justice King said that it would not be in M’s best interests to receive intensive care treatment. However, it was agreed by the parties that if M suffered a so called reversible condition, such as a nosebleed or PEG adjustment, then intensive care treatment could be given in order to make him more comfortable or provide symptomatic relief.
An NHS Trust v L & Others  EWHC 4313 (Fam)
This case concerned a 55 year old man, L, who had sustained a severe hypoxic brain injury following a cardiac arrest. He was said to be in either a vegetative state or at the lower end of the spectrum of minimal consciousness.
A disagreement arose between L’s family and the hospital trust as to what treatment L should receive if his condition seriously deteriorated. This led to the trust seeking a declaration from the court that it was not in L’s best interests to be actively resuscitated if his condition deteriorated.
The treating doctors gave evidence that L had less than 1% chance of meaningful recovery and would remain profoundly neurologically and physically impaired. Resuscitation or the use of a ventilator would be unlikely to succeed and would therefore be a cruel and unnecessary way to prolong L’s life. An independent expert agreed with this view, and it was said that there was unlikely to be any clinician in the country who would provide the relevant life sustaining treatments to L.
L’s family however was adamant that he was aware of himself and his environment and that he would have wanted to have all possible life sustaining treatment, not least in view of his religious beliefs as a practicing Muslim.
The Judge accepted that it was unrealistic to imagine that L would emerge from a minimally conscious state and that further life sustaining interventions were unlikely to be effective. (The Judge also indicated that, as there were no doctors willing to provide the treatment at issue, there were in fact no treatment options for the Court of Protection to make a declaration about.)
The Judge declared that L’s wishes and those of his family could not simply be followed because the test that the court had to apply was that of best interests, which required a balancing exercise to be carried out. In weighing the competing factors in this case, the balance came down firmly against the provision of active resuscitation and/or similar treatment. The administering of life-sustaining treatment would prolong L’s death and would not prolong his life in any meaningful way.
The Judge therefore concluded that it was not in L’s best interests for further life-sustaining treatment to be given.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.