Court of Protection rules on withdrawal of life sustaining treatment

Mr Justice Williams, in the Court of Protection, has ruled on the withdrawal of life-sustaining treatment from a young woman following a suicide attempt that left her in a vegetative state. London NHS Trust v CD & Others highlights the approach the court will take to best-interests decisions for people lacking capacity made under the Mental Capacity Act 2005.

Background

CD was admitted on a voluntary basis to a psychiatric hospital in December 2020 for treatment. In January 2021, whilst still an inpatient, she attempted to commit suicide. Tragically, this resulted in a “catastrophic global brain injury” as a result of prolonged hypoxia, the result of which she remained in a vegetative state.

The judgment sets out a complex family history and tension between CD’s parents that Mr Justice Williams described as having “dogged the lives of the family”. This is a tragic case.

Best interests decisions: the law

In his judgment Mr Justice Williams gives a comprehensive overview of the MCA and how this has been applied by the courts (see paragraphs 12- 25 of the judgment) and looks at the multifactorial and complex decision making process that decision-makers must undertake.

A number of key factors are listed below:

• A person can express their wishes non-verbally;
• The court should take into account the nature of the proposed treatment, and its potential impact on the subject of the decision;
• Where the patient’s condition may improve, a best interests decision can take into account the ‘best case’ scenario;
• Weight is given to the presumption to prolong life but that is not absolute;
• There must be an understanding that even the severely handicapped can find life rewarding;
• Weight given to the patient’s wishes and feelings will depend on their consistency, frequency, and how close to capacity the person is; and
• Where advance decisions have been made whilst the individual had capacity these should be given great weight and should usually be followed.

In conclusion, Mr Justice Williams held that “a host of matters must all go into the balance when the judge seeks to arrive at his objective assessment of whether this treatment is in this patient's best interests. In particular I must consider the values and beliefs of [CD] as well as any views she expressed when she had capacity that shed light on the likely choice she would make if she were able to and what she would have considered relevant or important. Where those views can be ascertained with sufficient certainty, they should carry great weight and usually should be followed; as they would be for a person with capacity who did express such views.” (Emphasis taken from Mr Justice Williams).

The evidence

Mr Justice Williams asked the question “whether [CD] would wish to live the life now available to her rather than be dead, rather than whether she would wish to live the life previously available to her rather than that which is now available to her”. To do so, he considered both medical evidence and evidence of her likely wishes and feelings.

Mr Justice Williams considered detailed evidence in order to come to his decision. This included the Trust’s clinical treating team (including psychiatrists) who were of the view that it was futile to continue treatment and that continued respiratory support and provision of Clinically Assisted Nutrition and Hydration (CANH) and ITU support was invasive, burdensome and not in her best interests. There was a small chance CD may progress to the lower end of a minimally conscious state, but even if she did so she would have no conscious awareness of her experiences.

Although CD’s mother and sister agreed with the clinical team her father considered that CD would wish for treatment to continue. In short, he considered that she would consider that the life she could be expected to lead, with the profound limitations, would be a life worth living. He considered that her love of animals and vegetarianism was evidence of her being of the view that life was precious, and that being integral to her “moral system”.

Mr Justice Williams built his understanding of CD’s likely wishes based on the evidence before him and concluded that withdrawal of life-sustaining medical treatment and the implementation of a palliative care regime was in CD’s best interests.

Comment

The case is an example of the complex and multifactorial nature of best interests decisions for those who lack capacity. It is clear from the judgment of Mr Justice Williams that these decisions will always be fact-specific, will require careful weighing of the evidence, including views of family and friends. It is also clear from this case that to undertake the balancing exercise, close scrutiny of the relationships between the individuals giving evidence and the person for whom the best-interests decision is being made may well be required.