B v An NHS Hospital Trust [2002] EWHC 429 (Fam)

Medical treatment – consent – capacity – right to die

The patient issued proceedings in the High Court for a declaration that she was entitled, because it was her capacitated wish, for the ventilator which sustained her, to be switched off. She had become tetraplegic through a haemorrhage of her spinal column and she wished not to be kept alive by use of the machine.  She was assessed by a consultant psychiatrist from another hospital. She requested that the ventilator be switched off, and then gave formal instructions via her solicitors that she wished for it to be removed.

Two independent psychiatric assessments were conducted. The opinions were first to the effect that she had sufficient capacity, and preparations were commenced to fulfil her instructions, but then the psychiatrists changed their minds. After a course of antidepressants, the doctors stated that Ms B had expressed herself as relieved that the ventilator had not been switched off. She was assessed for rehabilitation and agreed to try it.

Some months later, she asked for re-assessment of her mental state and her doctor no longer considered her to be depressed, but rather, fully competent to make a decision to discontinue treatment. Thereafter the Trust did not question her mental capacity, but it did dispute her capacity on account of her not having experienced the benefits of rehabilitation, leaving it to the Court to decide.

The Court held that what matters is that the patient has a capacity which is commensurate with the gravity of the decision which s/he has purported to take. Previous ambivalence about withdrawal of ventilation was not relevant to assessment of capacity unless it struck at the very root of the capacity of the patient. Ms B knew that she would have a less than 1% chance of independent ventilation and death would almost certainly follow withdrawal from the machine.

She was able to express that she thought that rehabilitation might make a difference to her quality of life, but not sufficiently, for her, to want to pursue it. The judge assessed her to demonstrate a very high standard of competence, intelligence and ability. She could assimilate and understand information given; she was capable of discussing it in detail with experts and lay people; and capable of evaluating it and forming judgments through weighing up the information. Although Ms B had not experienced what it could be like in a spinal unit, the judge thought that the requirement of experience as a constituent of capacity to make a life related decision was unrealistic. The key issue was that the weight to be given to the options was for the individual, once she had capacity. Ms B valued the ventilator and her handicap as worse than being dead, and whilst this was against the advice offered, and led to a clash in values making the situation more contentious, it was not for the doctors to impose their values on the patient.

Ms B was awarded nominal damages of £100 for trespass to her person for the continued treatment with the ventilator against her wishes.

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