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Judgment sheds light on application of best interests test

Preservation of life is the most salient factor that judges take into account in cases of minimally conscious patients, a recent judgment has suggested. Baker J’s ruling in W v M and others [2011] EWHC (Fam) provides useful guidance on how the Court of Protection applies the best interests test under the Mental Capacity Act 2005.

30 October 2011

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Jacqueline Almond, a partner at IBB Solicitors, says: “This is a landmark decision in the law relating to the severely disabled. It is the first time that an English court has been asked to consider whether life-supporting treatment should be withdrawn from a patient who was minimally conscious, rather than in a persistent vegetative state. It shows that the High Court has the power to decide whether it is in such patients’ best interests for treatment to continue or whether they should be allowed to die.”

The case involved a 52-year-old woman (M) who suffered profound brain damage in early 2003 after being diagnosed with viral encephalitis. Relatives wanted life-supporting treatment withdrawn and said M would not want to live “a life dependent on others”. However, a lawyer appointed by the High Court opposed the relatives’ application on the grounds that M was “otherwise clinically stable”.

Mr Justice Baker ruled that M should not be allowed to die, on the basis that she had “some positive experiences” and there was a “reasonable prospect” that those experiences could be extended.

Explains Almond: “There was disagreement between the parties on a number of the factors, in particular the level of M’s enjoyment of life. While it was accepted that M had no prospect of recovery, Baker J considered that her life was not overwhelmingly negative and that there could be some improvement in the quality of her life.”

The judgment of the case rested on the weight the judge gave to each factor in the best interests test. “The clearest guidance was that the key factor in the case of a patient in a minimally conscious state is preservation of life. This was stated by Baker J to carry substantial weight. This is different to patients in a permanently vegetative state where the balance would have been weighted in favour of the withdrawal of artificial nutrition and hydration (ANH). It is difficult to see at this stage what strength of evidence is needed to overcome that,” said Almond.

“In cases where the patient has ?a valid and applicable advance decision, then that would have been binding. ?The requirements are stringent and, ?even though weight was given to M’s prior statements, they were not specific enough to carry sufficient weight and did not comply with the Mental Capacity Act 2005 so as to be binding. ?It would seem that a clear statement ?is needed for the balance to turn in favour of withdrawing treatment, but how far short that is of an advance decision is not clear.”

M’s family are expected to appeal the decision. “If M’s family appeal it may help to clarify the weight attached to the various factors that the court takes into account when assessing best interests,” said Almond. “But short of a valid advance decision it is difficult to see how the other factors in the case of a minimally conscious patient can outweigh the preservation of life.” n

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