Judge: Peter Jackson J.
Citation:  EWHC 885 (COP) and  EWHC 886 (COP)
Summary: This case concerned an application for a declaration that it was in D’s best interests to have life-sustaining medical treatment, in the form of artificial nutrition and hydration, withdrawn. D had fallen into a vegetative state following surgery during which he suffered a cardiac arrest and associated hypoxia. Prior to the surgery, he had given his sister-in-law G a signed letter which said:
“To whom it may concern: I authorise [and then G’s name and address] to act on my behalf in the event of me being unable to make decisions for whatever reason. In particular, I authorise the above to liaise with the medical profession in making decisions regarding any further medical treatment. More specifically, I refuse any medical treatment of an invasive nature (including but not restrictive to placing a feeding tube in my stomach) if said procedure is only for the purpose of extending a reduced quality of life. By reduced quality of life, I mean one where my life would be one of a significantly reduced quality, with little or no hope of any meaningful recovery, where I would be in a nursing home/care home with little or no independence. Similarly, I would not want to be resuscitated if only to lead to a significantly reduced quality of life.”
Unfortunately, D had not been aware of the provisions in the Mental Capacity Act 2005 relating to advance decisions to refuse treatment, and in particular the requirement that an advance decision to refuse life-sustaining treatment must be witnessed (s.25 MCA 2005). The letter was therefore not binding, and the court’s assessment of D’s best interests was required.
As the diagnosis of permanent vegetative state had been confirmed, the court’s conclusion that it was in D’s best interests for artificial nutrition and hydration was inevitable, following the House of Lords’ decision in Airedale NHS Trust v Bland  1 AC 789 which held that continued futile medical treatment for a patient in a vegetative state was not in the patient’s best interests. However, the judge commented that “had there been anything to put in the balance against the other evidence, D’s wishes would have carried very great weight with me. He was a very private man before his incapacity, who would have been horrified at the prospect of being kept alive in this condition, with the total loss of privacy that his dependency entails.”
The court was also asked to determine whether the pre-MCA 2005 convention under which NHS bodies bringing applications for withdrawal of treatment were required, as a starting point, to pay 50% of the costs of the Official Solicitor. In the second judgment, the judge held at paragraph 15 that the MCA 2005 and the Court of Protection Rules had not changed the earlier position, continuing:
“I accept that to exercise discretion in this way in effect displaces the ‘general rule’ in cases in which the Official Solicitor acts, but the pragmatic basis for this compromise is as strong now as it ever was. To disturb long-standing practice would introduce uncertainty into every case, and foster costs arguments between public bodies. It would make it very difficult for public bodies to budget in individual cases and for the Official Solicitor to budget generally.”
However, the judge commented that “there is much to be said for a rationalisation of the underlying arrangements, with the Official Solicitor’s budget being set in such a way that he does not depend upon the recovery of costs from other public bodies. That, however, requires a change by Government to the financial rules of the game. It is not a change that can be brought about by decisions of individual referees.”
Comment: The pain and distress caused to D’s family by the failure of his advance decision to comply with the requirements of the MCA 2005, and the subsequent court proceedings, cannot be underestimated. D’s clear wishes were known, but the treating clinicians were unable to act on them for some 9 months while the court process took place. The case is a reminder of the importance of increasing public awareness about the statutory requirements for advance decisions, as well as for its related decision on costs which clarifies that the existing practice of sharing the Official Solicitor’s costs across the public bodies involved in medical treatment cases will continue, unless and until the Government provides full funding to the Official Solicitor to carry out his duties.