The latest on when you need to go to Court before withdrawing treatment
Summary A common dilemma for those making decisions about withdrawal of treatment is whether to involve the Court of Protection…
Published 30 October 2017
The Court of Protection has authorised the withdrawal of clinically assisted nutrition and hydration (CANH) from a stroke patient on the grounds that she would not have wanted to continue living as she was.
Previous cases about withdrawal of CANH have related to patients with disorders of consciousness such as PVS/MCS. This case was different in that, whilst the patient's physical and cognitive functions were affected, her level of consciousness was not.
Authorising withdrawal of CANH in this scenario breaks new ground. In this briefing, we look at the case and its impact.
PL was a 79 year old lady who had enjoyed a full, active life, until a stroke last year left her with severe brain damage.
She was being looked after 24/7 in a care home. She had very limited movement and was unable to speak. Due to her impaired swallowing, she received nutrition and hydration via a PEG tube, which was keeping her alive.
Her cognitive function was also severely affected. Although she seemed able to follow some simple sentences/questions at times, she was unable to process anything more complex. She did, however, appear to be aware of her environment and personal comfort and would occasionally smile in response to someone or something familiar to her, although her responses were inconsistent.
There was no real prospect of any further improvement in her condition.
PL's son applied to the Court of Protection for a decision on whether it was in PL's best interests for CANH to continue.
The Court decided that it would not be in PL's best interests for CANH to continue and that it was therefore lawful for it to be withdrawn.
Central to the Judge's decision was the evidence he heard about the past wishes and feelings of the patient herself. PL's family and friends were clear that she would not have wanted the treatment to continue. Examples included PL's son recalling her saying after suffering her first TIA that she would not want to be 'kept alive' artificially. He also recalled her saying that she would: "…pull out the...wires myself" if she had a major stroke leaving her on life support. Having heard this evidence, the Judge said: "...the very situation which PL had contemplated with dread if not horror, is the one in which she finds herself now".
If PL had expressed views specifically about CANH, the Judge said he would probably have regarded these as 'decisive'. As it was, her views about life-sustaining treatment weighed "heavily in the balance"
The Court's decision to authorise withdrawal of CANH from a patient who is not in PVS or MCS goes a step further than before, demonstrating that the Court is prepared to make decisions authorising the withdrawal of CANH in cases that fall outside the clinical diagnosis of PVS or MCS.
In the Judge's view, there is no reason to treat non-PVS/MCS cases differently - in all cases, the decision should come down to what is judged to be in the person's best interests overall.
"…the fact that someone retains consciousness and can answer questions is not itself a reason not to consider the discontinuance of life-sustaining treatment".
In applying the statutory test for making best interests decisions, the Judge reinforced the importance of weighing in the balance the wishes and feelings of the patient. The Judge in this case made his decision on the distinct and individual facts of PL's situation and, in accepting the evidence of the family that PL would not have wanted to have her life sustained in these circumstances, her views weighed heavily in the balance in favour of withdrawal of CANH.
The outcome in this case is therefore entirely fact-specific. However, following on from the decision in Briggs (2), the decision re-emphasises the importance of ensuring that, where possible, the past wishes and feelings of an incapacitated adult are taken into account when arriving at a best interests decision. The Mental Capacity Act requires decision makers to consider "as far as reasonably ascertainable, P's past wishes and feelings" and "the beliefs and values that would be likely to influence [her] decision if [she] had capacity".
Should you or your organisation be faced with a similar scenario, it is important to note that this case is fact-specific and consequently does not set a precedent for withdrawal of CANH in non-PVS/MCS cases without Court approval. In light of the recent decision by the Court of Protection in M (Withdrawal of Treatment: Need for Proceedings) and the announcement that Practice Direction 9E will be replaced, careful consideration will need to be given on a case-by-case basis as to whether such cases require an application to the Court of Protection before CANH can lawfully be withdrawn.
Our national team of Mental Capacity Act and Court of Protection specialists have extensive experience of advising providers and commissioners on all aspects of Court of Protection matters, including serious medical treatment cases such as those involving the withdrawal of CANH.
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If you need advice in relation to a withdrawal of treatment case or other Court of Protection matter, please contact Gillian Weatherill on: +44(0)191 4044045 or email@example.com.