Lives that sparkle: Court of Protection gives two women the right to die

The Court of Protection has recently acknowledged the right of two women to cease life-sustaining treatment.

In a landmark judgment given in M v N & Anors Mr Justice Hayden gave the first ever authorisation for the withdrawal of treatment from a minimally conscious patient Mrs N.

Case summary

Mrs N suffered from Multiple Sclerosis and had, over the years, declined to a state in which she remained sentient but could not respond to any external stimulus or enjoy any interaction with the outside world.

Her daughter, M, brought the application. Perhaps unusually, she applied for her mother’s treatment to be withdrawn. Hayden J had regard to the factors listed in section 4 Mental Capacity Act 2005, but found the crucial factor in this case to be N’s past wishes and feelings. N had been a strong character, full of life, and had felt horrified when the health of her own parents had deteriorated.

While this decision was founded on Mrs N’s wishes and feelings under the Mental Capacity Act, there is some overlap with the still-controversial subject of assisted suicide. Hayden J cited with implicit approval a passage from Lady Hale’s judgment in the right to die case R (Purdy) v DPP, and distanced himself from “what is often referred to as the sanctity of life” or “the intrinsic value of life”.

Another judge in the Court of Protection was equally ready to accept that the strength and individuality of a woman’s character in life can be grounds to respect her autonomy at the point of her death. In the case of C in King’s College Hospital NHS Foundation Trust v C it was her choice (and not just her wishes) that held sway.

C was a woman who spent the money of four husbands and several lovers, and devoted herself to living a life that “sparkles”. She attempted suicide by washing down painkillers with champagne as she did not wish to receive treatment for her breast cancer. Despite the positive prognosis, and two out of three assessments concluding that C lacked capacity, MacDonald J ruled that C did have capacity to refuse dialysis.

Comment

The attention to human detail in both these judgments is striking. Both judges took pains to draw out the full force of the character of each woman in their prime. Clinicians will obviously be mindful of the Royal College of Physicians Guidelines on Prolonged Disorders of Consciousness, which was given due weight in M v N. However, these judgements demonstrate that when someone who lacks (or may lack) capacity wishes (or allegedly would wish) life-sustaining treatment to be withdrawn, real insight into the personality, values and unique character of that individual throughout the course of their life is something that weighs heavily.