Court refuses family’s “right to die”

29 September 2011 by

M and others v NHS Primary Healthcare Trust – read judgment

For the first time the courts have been asked to consider whether life-supporting treatment should be withdrawn from a patient who was not in a persistent vegetative state (PVS) but was minimally conscious. The patient’s family sought a declaration for the withdrawal of artificial nutrition and hydration withdrawn and said the woman, referred to as M in court, would not want to live “a life dependent on others”.

The 52 year old woman, known as M, incurred severe brain damage after succumbing to  viral brain stem encephalitis in 2003. She was initially diagnosed as being PVS but it was later established that she was able to make minimal responses to stimuli. She has spent eight years being fed and hydrated via a gastostomy tube and remains totally dependant on others for all aspects of her daily care. She is immobile, has limited head and trunk control and is doubly incontinent. M had told relatives that she would not want to be kept alive in such a state but she did not commit this in writing. She was represented by the Official solicitor, who opposed this request, arguing that she was “otherwise clinically stable”. The local health authority responsible for commissioning her care also opposed the relatives’ application under the Mental Capacity Act 2005 and said the woman’s life was “not without positive elements”.

The ruling on Tony Bland is now nearly twenty years old (Airedale NHS Trust v Bland [1993] AC 789) and there the patient was in a permanent vegetative state after being crushed at the 1989 Hillsborough stadium disaster. The High Court concluded that he should  be allowed to die.

Baker J refused the application, saying that the factor which carried substantial weight was the preservation of life. In VS cases, said the judge, the balance falls in one direction in every case – in favour of withdrawal. In MCS cases, it depends on the facts, and the expert evidence, in the particular case. In assessing where the patient’s best interests lie, the court must follow a “balance-sheet” approach. In the case of patient M, he said

I find that she does have some positive experiences and, importantly, that there is a reasonable prospect that these experiences can be extended by a planned programme of increased stimulation…

Baker J issued guidelines for courts in such situation saying that they must not be asked to withdraw life-sustaining treatment if the latest medical techniques had not been taken to assess a patient’s condition, otherwise there as a danger of misdiagnosis, with patients assessed as being less aware than they actually are. The guidelines also say that all such cases must be heard swiftly and by a High Court judge. People who were once diagnosed as PVS may be re-classified as minimally conscious as a result of more sophisticated tests.

A full analysis of this judgment will follow later today.

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