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Published 11 January 2017
The recent Court of Protection case, of Lindsey Briggs v Paul Briggs, brings into sharp focus the difficult issues faced by the Court when deciding whether it is in the best interests of a person in a minimally conscious state to continue to be given life-prolonging treatment (in this case, clinically assisted nutrition and hydration).
Faced with the stark choice between preserving life and following what the Judge was 'sure' the patient in this case would have wanted (which was for treatment to be stopped), the Court concluded that the right to self-determination should win out.
Paul Briggs was in a minimally conscious state having sustained serious and permanent brain damage in a road traffic accident in July 2015. At the time of the court case, Mr Briggs' condition was clinically stable and he did not require invasive treatment. However, he needed clinically assisted nutrition and hydration ('CANH') to be kept alive. The Judge made clear that - unlike in PVS cases where the patient has no awareness or prospect of improvement - Mr Briggs' life continued to confer benefits and had value. There was also some prospect that his degree of consciousness could improve with rehabilitation. Mr Briggs had not made an advance decision about what should happen if this eventuality occurred or granted a lasting power of attorney, meaning that nobody was authorised to make treatment decisions in his place.
The 'best-case' scenario for Mr Briggs' recovery was that he would be able to make some simple choices but would not regain capacity to make complex decisions, he would be happy and experience some pleasure but also some pain, and would remain severely physically impaired, requiring 24 hour care and assistance with all activities of daily living.
There was a dispute in this case between Mr Briggs' family and the treating team about what would be in his best interests. Mr Briggs' family/friends were strongly of the view that he would not have consented to the CANH treatment being continued in these circumstances and wanted him transferred to a hospice where he would be allowed to die. However, taking into account the potential for Mr Briggs' condition to improve and the opportunity for him to lead a life of value, his treating team (and the Official Solicitor as Mr Briggs' Litigation Friend) were of the view that CANH should continue and that he should be transferred to a rehabilitation unit for further treatment and assessment.
Mr Briggs' wife applied to the Court of Protection for a ruling that it would be in his best interests for the treatment that was keeping him alive to be stopped.
The question for the Court to decide was whether it was in Mr Briggs' best interests for CANH treatment to continue, thereby prolonging his life.
The Judge found the family's evidence that Mr Briggs would not have wanted this treatment to continue to be 'compelling', to the extent that he was 'sure' that Mr Briggs would not have agreed to it continuing had he been able to make the decision.
The Judge then went on to decide that what Mr Briggs would have wanted was such a weighty factor in the balance here that it outweighed/rebutted the strong presumption in favour of prolonging life. Summarising the thinking behind his decision, the Judge said:
"….the weightiest and so determinative factor in determining what is in Mr Briggs' best interests is what I am sure he would have wanted to do and would have concluded was in his best interests. And so, for him, his best interests are best served by giving effect to what he would have been able to dictate by exercising his right of self-determination rather than the very powerful counter-arguments based on the preservation of his life."
The Judge emphasised that the test here is not 'what the patient would have done' (i.e. substituted decision test). It remains a best interests test, which requires weighing and balancing all relevant factors. Having said that, the patient should be 'at the very heart' of the decision-making process and, if the decision the patient would have made can be ascertained with sufficient certainty, this should generally prevail over the strong presumption in favour of preserving life. The Judge deliberately did not, however, try and set out how convinced the Court needs to be about what the patient would have decided to do, because the weighing exercise is so case and issue sensitive.
The Court therefore concluded in this case that it was in Mr Briggs' best interests for CANH treatment to be stopped.
An initial indication that the Official Solicitor might appeal the decision is not now being pursued.
This case highlights the very difficult decisions faced by those trying to decide what is in the best interests of patients in a minimally conscious state (as compared with PVS cases, for example, which are more straightforward because those patients have no awareness and treatment confers no benefit).
The legal test to be applied when making any decision about withdrawing treatment from a person who lacks capacity remains unaltered – i.e. what, on balance, is in the patient's best interests?
The strong presumption in favour of preserving life - which will be the usual starting point in such cases - also remains as before. However, this presumption can be rebutted. Where there is a compelling/cogent case that the patient would not have wanted to continue with life-sustaining treatment, this will weigh very heavily in the balance and may be the determinative factor in deciding what is in their best interests.
Whether or not there is any dispute about where a patient's best interests lie, all matters involving possible withdrawal of treatment from either PVS or MCS patients should be brought before the Court of Protection (in line with the Court's Practice Directions). This case gives a helpful steer on the approach the Court is likely to take in such cases and underlines the considerable weight placed on evidence about what the patient themselves would have wanted.
Our national team of Mental Capacity Act and Court of Protection specialists have extensive experience of advising providers and commissioners across the health and social care sector on all aspects of Court of Protection matters, including welfare applications relating to care and/or accommodation and serious medical treatment cases, including those involving the withdrawal of clinically assisted nutrition and hydration and applications to Court in respect of patients in MCS/PVS. The Court of Protection has repeatedly criticised public bodies who have delayed in issuing proceedings in PVS/MCS cases or failed to manage those proceedings efficiently to limit the stress caused to families. Early, carefully managed planning can reduce the risk of such criticism.
We can also provide bespoke training in relation to all aspects of Court of Protection proceedings.
For more information or advice, please contact Gillian Weatherill at email@example.com or on +44 (0)191 404 4045.
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