Vegetative patients and the withdrawal of life support.
The Court of Protection was asked to consider whether the patient, P, lacked capacity to make decisions regarding clinically assisted nutrition and hydration (‘CANH’). If P was found to have lacked capacity, the court was asked to consent on P’s behalf to the withdrawal of CANH, which would lead to her death.
P took a heroin overdose in 2014, suffering cardiorespiratory arrest and a severe hypoxic brain injury. The diagnosis was initially one of a vegetative state and was subsequently revised to that of a minimally conscious state. P was discharged from hospital into a rehabilitation unit where she was tracheostomy-dependent, tube-fed and completely immobile. P had disordered sensory input; no significant functional movement and any experience of pleasure or pain could not be determined. The unit opposed the withdrawal of CANH whereas members of P’s family were in support of withdrawal. The Official Solicitor submitted that P’s wishes, and feelings could be ascertained with sufficient certainty and should prevail over the presumption of preserving life where they were clearly against being kept alive in her current situation.
The application was not opposed by any party to the proceedings, however, in light of differing views expressed by the staff caring for P and the neutral position adopted by her treating clinicians, the matter was brought to the court. This was in accordance with the guidance issued in An NHS Trust v Y [2018] UKSC 46 where the Supreme Court clarified that there is no requirement to go to court to seek approval for the withdrawal of CANH provided that (a) the provisions of the Mental Capacity Act 2005 have been followed, (b) the relevant guidance has been observed and (c) there is agreement as to what is in the best interests of P. Where there is a disagreement as to a proposed course of action or where the approach is finely balanced, an application to the court should be made.
Macdonald J was satisfied that P lacked capacity to make decisions about her medical treatment and about the withdrawal of CANH. He determined that CANH was not in P’s best interests and that the court should withhold its consent for ongoing CANH, upon an end of life care plan being approved by the court. He was satisfied that, on the balance of probabilities, prior to becoming incapacitated P expressed a “clearly and firmly held view that she would not want to be kept alive in circumstances in which she now finds herself”.
Practitioners should be aware that the presumption of the sanctity of life is not absolute and that the court will give due consideration to dignity and to patients’ expressed views, to permit a “carefully managed, palliated and dignified end”.
Emily Quinn
Trinity Chambers
10th May 2020
