The application was made by the hospital on 25th February 2015 to effectively withdraw clinically assisted nutrition and hydration from a patient (‘P’) who had been in a vegetative state for probably 8 years, but at least 5 years, and for the court to make the necessary declarations pursuant to section 15 of the Mental Capacity Act 2005 (‘the Act’).
P was born in 1948 and is a 67 year old woman. From at least 1993 onwards P had suffered significant liver failure caused by chronic abuse of alcohol. P had been admitted to hospital on a number of occasions in 2000, 2001 and 2006. On 11th January 2007 P was found slumped across her bed with concussive symptoms. Test showed P had extensive intracerebral haemorrhaging involving the right frontal lobe. Upon admission to hospital there was a reduction in P’s consciousness.
P had been assessed over an 8 year period as being in a vegetative state with no perception of her surroundings.
In 2013 a best interests meeting unanimously concluded that any invasive treatment and procedures were not in her best interests and that P would not derive any benefit.
Capacity was not an issue and the unanimous opinion was that due to P’s severe brain damage she lacked capacity within the meanings of sections 2 and 3 of the Mental Capacity Act 2005 (‘the Act’).
The court also considered section 1 (principles) and 4 (best interests) of the Act.
Amongst other authorities the court considered the cases of the Supreme Court’s decision in Aintree University Hospital Trust v James  UKSC 67, and Baker J’s decisions in Gloucester CCG v AB & Others  EWCOP 49 and WM  EWHC 2443 Fam, and provided an overview of the law in relation to medical treatment (see paragraphs 11 to 13).
It is lawful to provide medical treatment if it is in the P’s best interests - the focus is not on whether it is in the P’s best interests to withhold treatment, the focus is whether it is in the P’s best interests to give or continue treatment.
The court must have regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Article 2 (a positive obligation to give life sustaining treatment where treatment is in the P’s best interests) and Article 8 (obligation in relation to the P’s personal autonomy and quality of life). The court considers that it is under Article 8 that the quality of life take on significance.
Although a balance sheet approach is normally adopted when assessing the P’s best interests, a balance sheet approach in some cases of vegetative state is not normally appropriate.
Medical treatment is not appropriate or requisite simply to prolong P’s life. When treatment has no therapeutic purpose then it is futile because the P is unconscious and there is no prospect of improving the P’s condition. It is reasonable to take account of the invasiveness of treatment and the indignity P can be subjected to.
The best interests test is focused on P rather than the conduct of the doctor, and takes account of all the circumstances not just the medical opinion.
In Aintree the court considered the Code of Practice in particular paragraphs 5.31 to 5.33.
Every P in every case is different and each case must be decided on its own facts.
The question to be answered is not whether it is in P’s best interest to die, it is whether it is in P’s best interests for their life to be prolonged by continuing treatment.
The difference between vegetative state and minimally conscious state is that in relation to permanent vegetative state it may mean that life sustaining treatment is futile, whereas with a P in a minimally conscious state the court takes an ‘holistic balance sheet approach’. Therefore it is vital that the P’s true condition is diagnosed before an application to court is made.
The court reiterated the necessity of using the structured assessment tools: the Wessex Head Injury Matrix (‘WHIM’), the Sensory Modality Assessment and Rehabilitation Technique (‘SMART’); and the Coma Recovery Scale as revised (‘CRSR’). If there is a degree of uncertainty or disagreement on the P’s level of responsiveness then the SMART test is essential to resolve it. Where applications are made to withdraw life sustaining treatment or therapy then the SMART assessment should be used.
Notwithstanding that the guidance had not been strictly complied with the evidence, based on the experts commissioned by the court that the P on a balance of probabilities that P has been in a vegetative state for at least 5 years and most probably 8 years, the court made the declarations sought.
The court stated that all applications of this nature must comply with the RCP Guidance so that the court can carry out the necessary analysis in order to determine the application.
The court looked at the definitions for vegetative state and minimally conscious state from the Royal College of Physicians, National Clinical Guidelines of 2013 (paragraph 13):-
‘Vegetative state is defined as a state of wakefulness without awareness in which there is preserved capacity for spontaneous or stimulus induced arousal evidenced by sleep/wake cycles and a range of reflexive spontaneous behaviours. Vegetative state is said to be characterised by complete absence of behavioural evidence or self or environmental awareness.
Minimally conscious state is defined as a state of severely altered conscious in which minimal but clearly discernible behavioural evidence of self or environmental awareness is demonstrated. Minimally conscious state is said to be characterised by inconsistent but reproducible responses above the level of spontaneous or reflexive behaviour, which indicates some degree of interaction with their surroundings.’
The court was critical of the fact that the relevant assessments had not been used and warned Authorities that they risk their applications being summarily rejected if the evidence is not provided.
Even though the court questioned the Authority’s assessments it noted that the family were in support of the application. It would be interesting to see how far the court would have gone if the family had disagreed.
At the end of the judgment the court made it abundantly clear that the guidance must be complied with as the course of conduct sought almost always leads to the P’s death, and these cases need to be dealt with swiftly, humanely and justly.
It will be interesting to see whether or not the courts will consider making costs orders against authorities in the future if the guidance and appropriate assessments are not complied with.
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