Mental Capacity Case

NHS Trust v Baby X & Others

Hedley J.

Summary: Following a catastrophic accident which resulted in chronic, profound and irreversible brain damage, baby X was incapable of breathing on his own and was ventilated and fed by nasal gastric tube. The Trust sought a declaration that it was in his best interests to be removed from the ventilator and treated with palliative care during the minutes, or at best hours, that would remain. His parents opposed this on the basis that their son should be given every chance to improve, however unlikely that presently looked; they believed they saw discernible signs of improvement; and the tenets of their faith prevented them consenting.

Although this case was decided under the inherent jurisdiction, some of the observations of Mr Justice Hedley may be equally applicable to treatment withdrawal cases in the Court of Protection:

"24. That assessment [of X's welfare] must be the court's independent assessment but it must be one that looks at all relevant issues from the assumed point of view of the patient; a necessary but necessarily artificial exercise in some ways it may be thought. Yet it is rightly so required for X is a human being of unique value: body, mind and spirit expressed in the unique personality that is X. It is important that 'quality of life' judgments are not made through other eyes for 'quality of life' may weigh very differently with different people depending on their individual views and aspirations. A life from which others may recoil can yet be precious.

25. At the same time preservation of life, however important, cannot be everything. No understanding of life is complete unless it has in it a place for death which comes to each and every human with unfailing inevitability. There is unsurprisingly deep in the human psyche a yearning that, when the end comes, it does so as a 'good death'. It is often easier to say what that is not rather than what it is but in this case the contrast is between a death in the arms and presence of parents and a death wired up to machinery and so isolated from all human contact in the course of futile treatment."

In concluding that X's welfare required his removal from ventilation and that it was lawful to treat him on the basis of palliative care, his Lordship's reasoning was as follows:

"28… First, I recognise the desire to preserve life as the proper starting point to which I add that X is very probably unaware of any burden in his continued existence. Against that, secondly, I have set both his unconsciousness or unawareness of self, others or surroundings and the evidence that any discernible improvement is an unrealistic aspiration. Thirdly, I have acknowledged his ability to continue for some time yet on ventilation but have balanced that with the risk of infection or other deterioration and the desire to avoid death in isolation from human contact. Fourthly, having accepted that treatment serves no purpose in terms of improvement and has no chance of effecting it, I have taken into account its persistent, intense and invasive nature. Fifthly, I have noted the treating consultant's view that X shows no desire to live or capacity to struggle to survive which are the conventional marks of a sick child; although I think that observation as such is correct, I would not want that to have significant let alone decisive weight in this balance."