@BJhealthlaw

@BJhealthlaw

A shift in law towards a substituted

judgment?

10 December 2015

@BJhealthlaw

• Recap of the MCA best interests test – the

basics

• W v M (2011)

• Aintree University Hospitals NHS Hospitals

Foundation Trust v David James (2013)

@BJhealthlaw

• Re M (Best Interests: DoL) [2013] EWHC

3456 (COP)

• Re B 2015

• M v N, Bury CCG & A Care Provider (2015)

• Kings College Hospital NHS Foundation

Trust v C (2015)

@BJhealthlaw

• a person must be assumed to have

capacity unless it is established that he

lacks capacity

• a person is not to be treated as unable to

make a decision unless all practicable

steps to help him do so have been taken

without success

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• a person is not to be treated as unable to

make a decision merely because he

makes an unwise decision

• an act done, or decision made, under this

Act for or on behalf of a person who lacks

capacity must be done, or made, in his

best interests

@BJhealthlaw

• before the act is done, or the decision is

made, regard must be had to whether the

purpose for which it is needed can be as

effectively achieved in a way that is less

restrictive of the person’s rights and

freedom of action

@BJhealthlaw

• section 4 checklist - person making

decision must consider all relevant

circumstances and in particular

• will the person have capacity in the

future and, if so, when?

@BJhealthlaw

• encourage the person to participate in

the decision

• must not be motivated by a desire to

bring about the person’s death (life-

sustaining treatment)

• must consider the person’s past and

present wishes and feelings, beliefs and

values that would influence him if he had

capacity

• must take into account the views of

anyone named who should be consulted,

anyone engaged in caring or interested in

the welfare of the person and any court

appointed deputy

@BJhealthlaw

• W applied for a court order authorising

the withdrawal of ANH from her daughter

M who was in a minimally conscious state

• when M was 43 she suffered viral

encephalitis and went into a coma never

recovering consciousness and left with

irreparable brain damage

• initially it was thought she was in PVS but

further assessments demonstrated she

was in MCS

• W submitted that M’s experiences were

predominantly negative and that

considering her wishes and feelings

before her illness and those of her family,

the withdrawal of medical treatment was

in her best interests under the MCA

@BJhealthlaw

• the OS however submitted that where a

person was in MCS and was otherwise

clinically stable, it could never be in their

best interests and therefore lawful to

withhold life sustaining treatment, or

alternatively a balance sheet approach

was applicable and came down in favour

of continuing treatment

@BJhealthlaw

• while the court was under an obligation

to consider M’s wishes and feelings, the

MCA test was not what M would have

decided if she had capacity, but an

objective test as to what would be in her

best interests

@BJhealthlaw

• all decisions about the proposed

withholding or withdrawing of ANH from

a person in PVS or MCS should always be

brought to the court

• any statements made by M before her

illness were informal and she had not

made any advance decision to refuse

treatment

@BJhealthlaw

• a balance sheet approach should be

followed (as per Bland) in all cases save

for where the patient is in PVS and

treatment considered futile

• M was conscious albeit minimally, was

clinically stable and able to respond to

her environment in a very limited way

• the preservation of life carries great

weight in the balancing exercise. It was

wrong to attach significant weight to

statements made by M before her illness.

M experienced some positive experiences

as well as pain and suffering

• the importance of preserving life was the

decisive factor and it was not in M’s best

interests for treatment to be withdrawn

@BJhealthlaw

• David James (68 yo) - admitted to

hospital in May 2012

• diagnosed with pneumonia and COPD –

deteriorated & admitted to ITU.

• July 2012 – suffered stroke (MCS)- no

capacity

@BJhealthlaw

• remained on unit - condition fluctuated,

severe setbacks (incl. a cardiac arrest &

multi-organ failure). Recurring infections.

Ventilator dependent.

• clinical team sought to withhold

– CPR

– invasive support for circulatory problems

– RRT

@BJhealthlaw

• family opposed – “treatment at all costs”

• when considering whether a treatment

offers a prospect of recovery, “recovery”

does not mean a return to full health, but

the resumption of a quality of life which

the patient would regard as worthwhile.

@BJhealthlaw

• assessment of the medical effects of a

treatment is only one part of the

equation - great weight had to be given

to Mr. James’ family life. The purpose of

the ‘best interests’ test is to consider

matters from the patient’s point of view,

and it is those wishes, which must be

taken into account.

• “…decision makers must look at his welfare in the widest

sense, not just medical but social and psychological” Lady Hale

“In the end, if M remains confined in a home she is entitled to

ask "What for?" The only answer that could be provided at the

moment is "To keep you alive as long as possible." In my view that

is not a sufficient answer. The right to life and the state's

obligation to protect it is not absolute and the court must surely

have regard to the person's own assessment of her quality of life.

In M's case there is little to be said for a solution that attempts,

without any guarantee of success, to preserve for her a daily life

without meaning or happiness and which she, with some

justification, regards as insupportable.”

“I am quite sure that it would not be in Mr B’s best interests to

take away his little remaining independence and dignity to

replace it with a future for which he understandably has no

appetite and which can only be achieved after a traumatic and

uncertain struggle that he and no one else would have to endure.

There is a difference between fighting on someone’s behalf and

just fighting them. Enforcing treatment in this case would surely

be the latter”

@BJhealthlaw

• Daughter M applied for a declaration that

it was in her mother’s (N) best interests

for ANH to be withdrawn

• N aged 68 profoundly physically &

cognitively impaired due to progressive

degenerative impact of MS

@BJhealthlaw

• the medical experts agreed N could fix

and track objects within her line of vision

and that while some pragmatic

adjustments could be made to improve

her quality of life, such measures could

only be described as palliative care

@BJhealthlaw

• however N clinically stable and could live

for up to 5 years

• family evidence: N would not have

wanted to live like this or for ANH to

continue. N had not made an advance

decision.

Held

• where P’s wishes and feelings could be

ascertained with reasonable confidence,

they had to be afforded great respect.

The Act & Code placed great emphasis on

the importance of personal autonomy.

The central objective was to avoid a

paternalistic approach; an individual’s

right to self-determination existed

alongside the presumption of the

prolongation of life.

Held

• the presumption of life could be rebutted

on the basis of a competent adult’s

cogently expressed wish. It followed that

the importance of an incapacitated

person’s wishes and feelings,

communicated via family or friends with

similar cogency and authenticity, were to

be afforded no less significance.

Held

• as P was in MCS, an evaluation of best

interests had to involve a proper

identification of the advantages and

disadvantages of each proposed course.

However if P was in PVS that balance

sheet approach did not apply. Even very

limited cognitive function as here,

appeared inconsistent with PVS.

Held

• where some level of awareness remained,

a decision to withdraw treatment should

only be made after a full analysis of P’s

best interests

• no ‘right to die’ as such exists - what was

in issue was N’s right to live her life at

the end of her days as she would have

wished

@BJhealthlaw

Held

• the inviolability of life had to be weighed

against an individual’s right to self

determination and personal autonomy:

individual’s choices had to be respected

Held

• there was no prospect of N achieving a

life that she would consider meaningful,

worthwhile or dignified. Her wishes

coupled with the intrusive nature of the

treatment and its minimal potential to

achieve any medical objective rebutted

any presumption of continuing to

promote life. It would be disrespectful to

N to preserve her life further in a manner

she would regard as grotesque.

@BJhealthlaw

Held

• the application was therefore granted

@BJhealthlaw

“Socialite who didn't want to grow ugly

and poor dies at 50” Mail online

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• a patient whose life depended on

receiving kidney dialysis treatment did

not lack capacity to refuse such

treatment merely because her decision

might generally be regarded as unwise.

@BJhealthlaw

• although the medical evidence indicated

that she suffered from a personality

disorder which might be classed as an

impairment in the functioning of her

mind, she appreciated that her prognosis

was positive if she maintained the

treatment and had been able to use that

information and weigh it in the decision-

making process

@BJhealthlaw

• MailOnline “Revealed: Truth about the

socialite who chose death over growing

old and ugly... and the troubling

questions over a judge's decision to let

her do it”

@BJhealthlaw

• the Aintree Supreme Court ruling in 2013

established that great weight must be

given to considering P’s point of view and

wishes, when determining what is their

best interests

@BJhealthlaw

• we are starting to see this arguable shift

towards a substituted judgment test in

the most clear cut of cases reflected in

wider case law including withdrawal of

treatment or ANH

@BJhealthlaw

• it is essential therefore that practitioners

establish P’s wishes & those of their

family/carers wherever possible and give

those views due weight as part of the

decision making process where P lacks

capacity

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

rebecca.fitzpatrick@brownejacobson.com | 0161 300 8050