Judge: Moylan J
Citation:  EWHC 4313 (Fam)
Summary: The transcript of this October 2012 case, about withholding life-sustaining treatment from a seriously ill man who was (probably) in a minimally conscious state, has only just been made available.
The case concerned an application by an NHS Trust for declarations that it would be lawful to withhold life-sustaining treatment from a 55 year old man who suffered from a number of medical problems, and had sustained a severe hypoxic brain injury following cardiac arrest. L was said by his treating doctors to be in a vegetative state at the time of the application, and to have a less than 1% chance of a meaningful recovery. It later transpired that there was some question over his diagnosis, and it was possible that he was at the lower end of the spectrum of minimal consciousness. In any event, his family was adamant that he was aware of himself and his environment, and that he would have wanted to have all possible life-sustaining treatment provided, not least in view of his religious beliefs as a practising Muslim. The treating doctors took the view that resuscitation or the use of the ventilator would be a cruel and unnecessary way of prolonging L’s life. Their stance was supported by an independent expert instructed by the Official Solicitor on behalf of L, who said that his death would be characterised by a series of harmful interventions if the declarations sought were not granted. It was said that there was unlikely to be any clinician in the country who would provide the relevant life-sustaining treatments to L.
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 – even if they were, they would at best only return L to his present level of awareness. In fact, the judge indicated that since 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. None of the parties had pursued the case on this basis however, so the judge carried out a balancing exercise and concluded that it was not in L’s best interests for further life-sustaining treatment to be given. L’s wishes could not simply be followed – the test the court had to apply was that of best interests, not substituted judgment. The administering of life-sustaining treatment would prolong L’s death, it would not prolong in any meaningful way, his life.
Comment: This case presents an interesting contrast to the first reported case concerning a patient in a minimally conscious state – the case of W v M  EWHC 2443 (COP). In M’s case, her family was unanimous in its view that M would not have wanted to be kept alive in that state. Yet the court decided it was in her best interests for artificial nutrition and hydration to continue. In L’s case, the family was unanimous in its view that L would have wanted further treatment. Yet the court reached the opposite conclusion. In L’s case, the court’s decision was perhaps inevitable given that there were no doctors willing to provide treatment, but the issue of how to deal with P’s likely wishes in end of life scenarios remains a difficult one. It is hoped that the Supreme Court will provide some guidance in its forthcoming decision in the appeal against the Court of Appeal in Aintree v James, in which it heard oral argument on 24 and 25 July 2013.