Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [Court of Protection]
| Jurisdiction | England & Wales |
| Judgment Date | 28 September 2011 |
| Neutral Citation | [2011] EWHC 2443 (Fam) |
| Court | Family Division |
| Docket Number | Case No: COP 1182483 |
| Date | 28 September 2011 |
[2011] EWHC 2443 (Fam)
IN THE COURT OF PROTECTON
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Baker
Case No: COP 1182483
and
and
Vikram Sachdeva and Victoria Butler-Cole (instructed by Irwin Mitchell) for the Applicant
Caroline Harry Thomas QC and Katherine Apps (instructed by the Official Solicitor) for M
Bridget Dolan (instructed by Beachcroft LLP) for the Primary Care Trust
S was present for part of the hearing but not represented
Hearing dates: 18 th to 22 nd and 25 th to 29 th July and 1 st August 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 28 September 2011. It consists of 76 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of M, W, B and S and members of their family must be strictly preserved.
SUMMARY
On the morning of 17 th February 2003, when she was supposed to be leaving for a skiing holiday, M, then aged forty-three, was found by her partner S in a drowsy and confused condition. She was taken to hospital where she soon fell into a coma. It was discovered that she had suffered viral encephalitis which left her with extensive and irreparable brain damage. Ever since, she has been wholly dependent on others for her care, and since April 2003 fed artificially via a gastrostomy tube.
When M emerged from the coma, the doctors diagnosed that she was in a vegetative state. After several years of exploring all options in the hope that she would recover consciousness, members of her family decided, with the support of the treating doctors, to apply for a court order authorising the withdrawal of artificial nutrition and hydration. On 16 th January 2007, in accordance with the procedure then in force, an application was made to the Family Division under the inherent jurisdiction of the High Court seeking a declaration that M lacks capacity to make decisions as to future medical treatment (which has never been in dispute) and a further declaration that the doctors may lawfully discontinue and withhold all life-sustaining treatment including artificial nutrition and hydration.
In the course of subsequent investigations for the purposes of the application, however, it was discovered that M was in fact not in a vegetative state but rather in what is called a minimally conscious state. A patient in this condition is above the vegetative state and is aware to some extent of herself and her environment but does not have full consciousness. After extensive further investigation, however, M's family decided to proceed with the court application, which ultimately came before me in July 2011 sitting in the new Court of Protection, to which the jurisdiction to hear such applications had been transferred by the Mental Capacity Act 2005.
Any decision made under the Mental Capacity Act for a person who lacks capacity must be made in her best interests. The law requires the court to identify those factors which are relevant to the person's best interests and carry out a balancing exercise weighing up the factors on each side of the issue. This approach is well established in cases involving medical treatment. This is, however, the first time in this country that a court has been asked to authorise the withdrawal of artificial nutrition and hydration from a patient in a minimally conscious state.
The hearing before me lasted ten days. I heard evidence from B and S who spoke movingly about M and contrasted her previous life with her current circumstances. They told me about things that M had said before her collapse which, they maintain, demonstrated that she would not want to be kept alive in this condition. I also heard evidence from a number of members of the dedicated team of professional care staff, skills workers and physiotherapists who look after M in her present nursing home. They portrayed her life in much more positive terms that those used by members of her family. I heard evidence from Helen Gill-Thwaites, a specialist occupational therapist who has developed a widely-used and internationally-respected assessment technique known as the "SMART", and who applied that technique to M on two occasions to assist in the diagnosis of her level of consciousness. Finally, I heard from two leading experts in neuro-rehabilitation – Mr. Derar Badwan and Professor Lynne Turner-Stokes – who expressed contrasting opinions on M's level of consciousness, and also on the ultimate question whether it is now in M's best interests for ANH to be withdrawn.
The case put forward on behalf of M's family is based substantially on what they say were, and still are, M's wishes and feelings. The law rightly requires the court to take into account M's wishes and feelings when determining her best interests. Importantly, however, M did not make any formal advance decision that she wanted artificial nutrition and hydration to be withdrawn in the circumstances that now exist. Had she done so, under the law that existed in 2003, the court would have abided by that advance decision. Under the new Mental Capacity Act, there is now a statutory procedure for making advance decisions, protected by stringent safeguards and formalities. If those safeguards and formalities are satisfied, the advance decision is binding. In this case, the various statements made by M prior to her illness in 2003 were informal, and not specifically addressed to the question I have to decide. Accordingly, whilst I take those statements into account, they are not binding and in all the circumstances I do not consider they carry substantial weight in my decision.
The factor which does carry substantial weight, in my judgment, is the preservation of life. Although not an absolute rule, the law regards the preservation of life as a fundamental principle. As another judge has said: "there is a very strong presumption in favour of taking all steps which will prolong life and, save in exceptional circumstances, or where the person is dying, the best interests of the patient will normally require such steps to be taken".
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.
Having weighed up all the relevant facts, I conclude that it is not in M's best interests for artificial nutrition and hydration to be withdrawn and I therefore refuse the application.
It is, however, agreed that the existing "Do Not Resuscitate" order should be continued. I conclude that other treatment decisions should be left to the clinicians to determine in consultation with M's family. I will in due course hear further submissions about the details of M's future care plan.
I realise that this decision will be a severe disappointment to members of M's family who have endured years of anguish during which they have demonstrated their deep devotion to M. I hope it would be of some comfort to the family that M will continue to be looked after in her current nursing home, which I have visited during the course of the hearing. All parties, including members of M's family, agree that the care given to M at the nursing home is of the highest standard. I urge everyone concerned with M – doctors, care staff, and her family – to work together to agree a revised care plan which gives her an opportunity of more positive experiences.
BACKGROUND
M was born on 12 September 1959 and is therefore now fifty-two years old. Until her illness, she had always lived in the same town in the north of England where other members of her family still reside. She has two siblings, a brother, some ten years older than she, and a sister, B, to whom she has always been very close. After their parents were divorced, M and B were looked after by their mother, W. When they left school, both M and B became hairdressers and worked together for a number of years before B left the salon to look after her two small children.
In 1982, when she was twenty-two years old, M met a man called S, who was some two years older, and they started their relationship which continues to this day. They lived together in the same town in a succession of properties, latterly in a house owned in their joint names. Although they never married, nor had any children, M and S were clearly in a very close, loving, stable and permanent relationship.
On 17 February 2003, the day before she was due to go on a skiing holiday with S, M went to bed early complaining of a headache. The following morning, S was surprised that M, contrary to her usual habit of rising early, was still in bed when he woke. She was drowsy and confused, and he therefore telephoned NHS Direct who ordered an ambulance to attend at the property. M was admitted to hospital where her condition quickly deteriorated so that within a short space of time she was in a coma. The doctors diagnosed that she had suffered from viral brain stem encephalitis, although no cause of the virus was ever identified. She remained in a coma for some...
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