Wednesday 28 September 2011

A matter of life or death: a minimally conscious patient

Life or death decisions involving people in so-called "vegetative states" have exercised the courts for some time, particularly since the decision of the House of Lords in the case of Hillsborough victim Anthony Bland - Airedale NHS Trust v Bland [1993] AC789.  The case of W v M, S and a NHS Trust [2011] EWHC 2443 (Fam) 28th September 2011 concerned a lady, referred to as M, who is in a "minimally conscious state" which differs significantly from "vegetative state."  A patient in a minimally conscious state is above the vegetative state and is aware to some extent of herself and her environment but does not have full consciousness.    In May 2011, Baker J permitted an open hearing in the case though certain restrictions were imposed the media - see May judgment

Baker J's judgment in M's case is a tour de force extending to 261 paragraphs including a masterful analysis of the law (paras 57-103).  Essentially, M's family wished medical staff to discontinue offering M life sustaining treatment including artificial nutrition and hydration (ANH).   Baker J concluded that the factor carrying substantial weight in this case was the preservation of life (para 7)

Although not an absolute rule, the law regards the preservation of life as a fundamental principle. As another judge has said: "there is a very strong presumption in favour of taking all steps which will prolong life and, save in exceptional circumstances, or where the person is dying, the best interests of the patient will normally require such steps to be taken". 

M does experience pain and discomfort, and
her disability severely restricts what she can do. Having considered all the evidence, however, I find that she does have some positive experiences and importantly that there is a reasonable prospect that those experiences can be extended by a planned programme of increased stimulation.

Having weighed up all the relevant facts, I conclude that it is not in M's best interests for artificial nutrition and hydration to be withdrawn and I therefore refuse the application.

This is the first judgment dealing with a patient in a minimally conscious state and Baker J sets out some principles, agreed with the President of the Family Division, to guide future cases - (para. 256).

It is remarkable that the case was argued, on behalf of W's family, by lawyer acting without payment (pro bono).  At para. 260 Baker J said:

" ... given the fundamental issues involved in cases involving the withdrawal of ANH, it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the Applicant's team has acted pro bono throughout the hearing and during much of the very extensive preparation. I stress that this has not caused any disadvantage to the Applicant. As I said at the conclusion of Mr. Sachdeva's submissions, the family could not have had better representation. But it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the "playing-field" was level because of the exceptional generosity of the Applicant's lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family's rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present, such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration"

As regards permitting the media to attend the hearing, Baker J said (para 261):

" ... the hearing of the application has vindicated the decision, made for the reasons set out in the earlier judgment reported at [2011] EWHC 1197 (COP), to conduct the hearing in open court but subject to a reporting restriction order that prevents identification of M, family members, and the care home and its staff. Provided that the privacy of the individuals involved is fully respected, it is imperative that the press should be as free as possible to report cases of this sort. The issues involved are of fundamental importance to all of us, both collectively and individually. For society as a whole, they touch upon the very challenging issues, currently the subject of much public debate, about the treatment of those suffering from severe disability, and those nearing the end of their lives. For each of us as individuals, they draw attention to the question of how we would wish to be treated should we find ourselves in a vegetative or minimally conscious state. The public needs to be informed about how such questions are resolved, be it under the advance decision procedure in sections 24 to 26 of the Mental Capacity Act or by application to the Court of Protection. It is therefore in the public interest for such cases to be reported as widely and freely as possible, provided that due respect is paid to the wishes of the family to protect their privacy"

See the announcement by Harcourt Chambers when Jonathan Baker QC was appointed to the High Court and assigned to the Family Division.

Addendum 30th September:  I am delighted to draw attention to three posts on the UK Human Rights Blog - "Court refuses family's right to die" - "No right to die without a living will" and "What is a life worth living? Further analysis of "M" - Daniel Sokol.  These look in some detail at the possible consequences of the judgment.

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