W v M
Summary: M had suffered a non-traumatic brain injury some eight years ago, following which she was diagnosed as being in a vegetative state. On further examination, it transpired that M did not meet the criteria for vegetative state and was in a 'minimally conscious state' ('MCS'). M was severely disabled and dependent on others for all aspects of her care. She had no functional communication and only intermittent awareness of herself and her environment. So far as it was possible to tell, M was capable of experiencing pain, and did experience pain though not constantly. She was apparently able to have pleasurable experiences for example hearing music and being massaged. She was kept alive through artificial nutrition and hydration. M's sister and partner were adamant that M would not have wanted to be kept alive in this condition. She had been very independent and had expressed views about not wanting to end up in a care home or dependent on others. There was no realistic prospect of M recovering, and it was estimated that her life expectancy was a further 10 years. The family sought a declaration under the MCA 2005 that it was in M's best interests for ANH to be withdrawn. The application was opposed by the PCT responsible for commissioning M's care and by the Official Solicitor on behalf of M, who argued that M's quality of life was not so burdensome to her she should be allowed to die, and that her previously expressed wishes and likely views were too uncertain to be given significant weight.
The Official Solicitor further submitted that the court could not carry out a balancing exercise at all in the case of patient in MCS who was clinically stable, because to do so would be to make impermissible value judgments about another person's quality of life.
Mr Justice Baker found against the Official Solicitor on the question of what approach the court should take to the application, holding that a best interests decision had to be made, and that there was no rationale for extending the approach set out in Bland (whereby there was no balancing exercise to perform in respect of someone who was permanently insensate) to patients in MCS.
In M's particular case, the judge found that M's life was not overly burdensome, saying in his summary that 'M does experience pain and discomfort, and her disability severely restricts what she can do. Having considered all the evidence, however, I find that she does have some positive experiences and importantly that there is a reasonable prospect that those experiences can be extended by a planned programme of increased stimulation.' The preservation of life was a fundamental principle, and the views of M's family about her likely wishes were not to be given significant weight.
Comment: It is unsurprising that a court will be extremely reluctant to sanction steps which result in the death of an incapacitated person, and is likely to err on the side of choosing life over death, given the gravity and irreversibility of the decision to withdraw ANH.
However, it is interesting to note that in any other case, the previously expressed views of a now-incapacitated person, and their likely view of their present circumstances, would be paid considerably more attention.
Perhaps the most important lesson to draw from the judgment is that given the inherent cautiousness about refusing medical treatment on the part of an incapacitated person, there should be much greater use of advance decisions about medical treatment, for those people who are uneasy about the prospect of a court making decisions on their behalf if they should lose capacity.