M v (1) N (BY HER LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2) BURY CLINICAL COMMISSIONING GROUP (3) CARE PROVIDER (2015)

M v (1) N (BY HER LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2) BURY CLINICAL COMMISSIONING GROUP (3) CARE PROVIDER (2015)

Keywords: Best Interests, Life sustaining treatment, Minimally Conscious State

Mrs. N, a 68 year old woman with Multiple Sclerosis, was profoundly impaired both physically and cognitively as a result of the progressive degenerative impact of her condition. By the time of the application, some 23 years after her original diagnosis, she had undergone a lengthy decline in both physical and mental functioning, resulting in having spent the last 7 years dependent on PEG feeding and with very limited, if any, awareness or consciousness. Mrs. N’s daughter M applied to the court for a best interests determination as to whether life sustaining medical intervention should continue arguing that “the situation for her mother was intolerable and she no longer remained alive in any sentient sense”.

The judgement sets out the history of Mrs. N’s condition and her reactions to it in some detail because this information formed a “broad canvass of evidence” which informed Mr Justice Hayden’s ultimate decision. In summary, Mrs. N had consistently struggled to come to terms with her diagnosis and treatment, frequently expressing anger and frustration. She had repeatedly sought to maintain her independence and dignity, even where this had resulted in overall negative consequences for her care.

Minimally conscious state versus vegetative state

The judgement, referencing the National Clinical Guidelines in Prolonged Disorders of Consciousness (PDOC), discusses in detail the issues surrounding the medical diagnosis of VS (vegetative state) and MCS (minimally conscious state). Mr Justice Hayden reiterates the emphasis from that guidance and the judgement in Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012 1 WLR 1653] on the importance of the use of standardised assessment tools such as SMART and WHIM to assure the reliability of the detailed diagnosis as a precursor to making applications to the court. However, Mr Justice Hayden’s interpretation of Re M is that it should not be taken to elevate the importance of standardised assessments to a level at which they would become “determinative of the outcome of cases of this kind.”.

Mr Justice Hayden did not come to a conclusion on the issue of which should be preferred between the importance of consistency in the application of the National Clinical Guidelines in Prolonged Disorders of Consciousness (PDOC) versus clinical judgement in individual cases. He found it unnecessary to do so concluding that “What emerges therefore is agreement between the doctors as to the clinical findings and disagreement as to the correct nomenclature to be applied.”. Therefore, he concluded that the legal implications of a determination between VS and MCS were of greater relevance than clinical opinion in determining which should be applied in this case. A finding of VS would have rendered an analysis of Mrs N’s best interests irrelevant, since it is axiomatic that treatment is futile in a VS. Therefore, no matter how limited any remaining level of awareness might be, Mr Justice Hayden concluded that a decision to withdraw treatment should only be made after a full analysis of P’s best interests. Essentially, therefore, the judgement creates a default presumption in favour of a full best interests determination in line with a diagnosis of MCS where there remains any uncertainty or dispute as to a diagnosis of VS. It is not, however, determinative as to what the outcome of that best interests assessment should be.

It is the first ruling in favour of the withdrawal of life sustaining treatment in the case of a patient in a minimally conscious state (as opposed to a vegetative state). However the judgement rests, not on medical arguments about the distinction, but on a legal decision to prefer a judgement based on a full best interests determination in the absence of clear evidence of a vegetative state.

The ruling stresses that “this case is not concerned with a right to die. No such right exists. What is in focus here is Mrs. N’s right to live her life at the end of her days in the way that she would have wished.” (para 70)

Evidence of P’s wishes

Although no formal advance decision existed in this case, there was substantial evidence before the court regarding Mrs. N’s attitudes, beliefs and approach to life generally and to illness. Mrs. N was described as proud, private, extraordinarily ‘feisty’ and possessing an indomitable spirit. She was a woman for whom outward or public appearance was enormously important. She had been extremely close to her parents, but was described as having reacted badly to their decline into dementia. She had become resistant to visiting them in a care home, hating to see them in such a diminished state and was reported by more than one family member as having said, at the time, and with a degree of seriousness, “if I ever get like that shoot me!”. She simply could not bear to see what they had become.

Mrs. N’s refusal to engage with treatment or support during the earlier stages of her own condition was viewed by her family “not as an indication of a determination to overcome the disease but a deep resistance to acknowledging its existence at all”. When confronted with the reality of her situation some twenty years previously, she had ranted about wishing to die.

Mr Justice Hayden concludes: “I am left with little doubt that Mrs. N would have been appalled to contemplate the early pain, increasing dependency and remorseless degeneration that has now characterised her life for so long. I have no difficulty in accepting the family’s view that she would not wish to continue as she is. More than that, she would have wished to have discontinued her treatment some considerable time ago.” (Para. 60)

In coming to this conclusion, Mr Justice Hayden stressed that legitimate evidence of an incapacitated person’s wishes goes beyond what they are recorded to have explicitly said:  “Strong feelings are often expressed non-verbally, sometimes in contradistinction to what is actually said. Evaluating the wider canvass may involve deriving an understanding of P’s views from what he may have done in the past in circumstances which may cast light on the strength of his views on the contemplated treatment.” (para.28)

The basis on which ‘best interests’ are to be determined

With reference to Airedale NHS Trust v Bland [1993] and Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012], Mr Justice Hayden sets out the core issue as the delicate  balance to be struck between the sanctity of life and an individual’s right to self-determination. He cites the Mental Capacity Act provisions around Advance Decisions as illustrating: “that the presumption of life, predicated on what is often referred to as the ‘sanctity of life’ or the ‘intrinsic value of life’, can be rebutted (pursuant to statute) on the basis of a competent adult’s cogently expressed wish. It follows, to my mind, by parity of analysis, that the importance of the wishes and feelings of an incapacitated adult, communicated to the court via family or friends but with similar cogency and authenticity, are to be afforded no less significance than those of the capacitous.” (para. 32). In his view “The central objective is to avoid a paternalistic approach and to ensure that the incapacitous achieve equality with the capacitous.” (para. 30)

Consequently,  it was held that treatment should be withdrawn. In the court’s view, Mrs. N’s “wishes, so thoughtfully presented by her family, coupled with the intrusive nature of the treatment and its minimal potential to achieve any medical objective, rebut any presumption of continuing to promote life.”. Ultimately “that in this case respect for Mrs. N’s dignity and human freedom overwhelms further prolongation of life”.

Comments

Some commentators have suggested that M v Mrs N represents a shift towards a substituted judgement test rather than a more rounded evaluation of best interests. However Mr Justice Hayden explicitly rejects such an interpretation of his ruling. Referencing Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James and others [2013 UKSC 67] and HHJ Hazel Marshall QC in: Re S (Protected Persons) [2010 1 WLR 1082], he draws the following conclusion about the relationship between the collection of evidence regarding P’s wishes, views and feelings and the ultimate determination of ‘best interests’:

“where the wishes, views and feelings of P can be ascertained with reasonable confidence, they are always to be afforded great respect. That said, they will rarely, if ever, be determinative of P’s ‘best interest’s’. Respecting individual autonomy does not always require P’s wishes to be afforded predominant weight. Sometimes it will be right to do so, sometimes it will not. The factors that fall to be considered in this intensely complex process are infinitely variable e.g. the nature of the contemplated treatment, how intrusive such treatment might be and crucially what the outcome of that treatment maybe for the individual patient. Into that complex matrix the appropriate weight to be given to P’s wishes will vary. What must be stressed is the obligation imposed by statute to inquire into these matters and for the decision maker fully to consider them.” (para.28)

This case is the first in which it has been ruled lawful to withdraw artificial nutrition from a patient in a minimally conscious state rather than a vegetative state. However the conclusion to be drawn from this would seem to be that the courts continue to emphasise the weight and importance to be accorded to a range of evidence of P’s views, wishes and feelings in the course of a full and rounded assessment of best interests. Nevertheless, P’s views (even prior views expressed when P had capacity) are clearly not determinative in isolation and the ultimate outcome of individual cases will continue to vary depending on the intersection of those views with the medical facts and the presumption in favour of life.

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