HLE blogger Charles Foster examines the emotive issue of the withdrawal of artificial nutrition & hydration from patients
“In 2003, when she was 43 years old, M was preparing to go skiing. She never got there. Viral encephalitis plunged her into a coma. She gradually emerged from that coma into a minimally conscious state (MCS). In 2011, now 52, she hit the front pages of many UK newspapers when some of her family members made an application to the court of protection for withdrawal of the artificial nutrition and hydration (ANH) that were keeping her alive. The primary care trust caring for M, and her litigation friend, opposed the application. There was no relevant advance decision.
Baker J found that M had some awareness of herself and her environment, and some understanding of language. She occasionally spoke herself, appeared to be able to appreciate some things that were said to her, and responded to music. She regularly experienced pain, but this was not constant or extreme. Her condition was stable. The prospect of any significant improvement in the level of consciousness was remote.
In reaching these findings, Baker J found, as many previous judges have found in comparable cases, that the carers who had moment to moment contact with M had the greatest insight into her condition. It was their observations that squared most accurately with the more objective results from the SMART and WHIM assessment tools.
He reviewed the authorities, beginning with the speech of Lord Goff in Airedale NHS Trust v Bland [1993] AC 789. The only justification for continued ANH is that it is in the best interests of the patient. The burden of establishing that withdrawing ANH is in the patient’s best interests rests on the party asserting that it should be withdrawn: R (Burke) v GMC [2005] QB 424, per Munby J. In deciding where the best interests lie, a balance sheet approach is appropriate: see Re A (Male Sterilisation) [2000] 1 FLR 549. This assessment is a holistic one: it is not only medical considerations that go into the balance sheet. The Mental Capacity Act 2005 requires the decision-maker to consider the patient’s wishes, feelings, beliefs and values, and other factors that would have been relevant to the patient had she had capacity, but the best interests test is not a test of substituted judgment…”
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