Private Client Focus | Sustaining life: the role of intuition in the Court of Protection

.' ?1639 (CoP).

EWHC 2443, are the last two cases in a string of judgments in the Court of Protection (CoP) regarding the provision of life-sustaining treatment. Cases of this nature invoke not only the Mental Capacity Act 2005 (MCA 2005), ?but also the Human Rights Act 1998 ?(HRA 1998), and thus bring with them Strasbourg jurisprudence.
The case of E resulted in Mr Justice Jackson invoking his intuition to tip ?what was equilibrium between, effectively, life and death. This poses the question: ?can the MCA 2005 always provide the answer without intuition tipping the equilibrium? And if not, is more or even less law required?
?L?The fundamental principle to be applied by the courts in such decisions is the principle of the sanctity of life. This principle is not one which has been created by the MCA 2005, nor is it a principle which is absolute.
T Airedale NHS Trust [1993] A.C. 789, the case involving Anthony Bland who sustained severe brain damage during the Hillsborough stadium disaster. The case reached the House of Lords and following five judgments, each of great profundity, treatment which was being provided to Anthony was withdrawn.
The Lords held that in the great ?majority of cases, the best interests of the patient would likely require treatment to either be commenced or continued. Nevertheless, this must be weighed up against an assessment of the futility of the treatment, as well as whether there might be further positive experiences for the patient to enjoy.
F [2000] 1 FLR 549 [2001] Fam 15, consideration must also be given to the effects of any proposed treatment on the patient's 'enjoyment of life'.
?Legal framework?In 2005, parliament decided to calibrate the principles as laid out above to provide a legal framework with the introduction of the MCA 2005 for judges making certain decisions (both based on welfare and financial) in the situation where there was an incapacitous patient. The Act stipulates that decisions must be based on the patient's best interests.
The starting point of every decision making process regarding cases of this type is one of jurisdiction: does the person lack capacity and are they therefore unable to make the decision in question ?for themselves?
If the person lacks capacity, the Court of Protection is the appropriate jurisdiction. In this case, the court will have to then decide whether a certain decision is in the person's best interests.

Section 4 of the MCA 2005 deals with issues which the court must give regard to in deciding what is or is not in the person's best interests. This provision is an over-arching one for all matters under the court's jurisdiction, whether matters of personal welfare or a financial nature.
Sections 24-26 of the Act goes further, focusing on advance decisions for the refusal of treatment. Throughout the case law relating to the Act, the judges have been unequivocal that decisions of the court in application of these principles must be applied in a 'highly individualised way, focusing on the situation of the individual concerned and not ?on generalities'.

In weighing up whether something is in a person's best interests, looking beyond section 4 MCA 2005, the code of practice at paragraph 5.31 asks the court to assess whether continuance of certain treatment is 'futile, overly burdensome'¦ or where there is no prospect of recovery'.
While the principle that everyone's life shall be protected by law is not an absolute one, the code of practice accompanying the MCA provides clear authority that 'all reasonable steps which are in the person's best interests should be taken to prolong their life'.
?Life sustaining treatment ?The HRA 1998 incorporated the European Convention on Human Rights, bringing these rights home to allow the English and Welsh courts to hear such cases invoking potential interferences with the Convention rights. Cases relating to life-sustaining treatment are of course ?no exception.
These cases frequently invoke three of the most fundamental rights: article 2 (the right to life), article 3 (prohibition of torture and degrading treatment), article 5 (deprivation of liberty), and article 8 (right to respect for private and family life). Section 3 of the HRA mandates the courts to read and give effect to the provisions of the MCA to ensure compatibility with the Convention rights as listed above.
The case of M involved a brain damaged adult who required artificial nutrition and hydration (ANH). The applicant was in a minimally conscious state (MSC) and not a permanent vegetative state (PVS). The central issue to the case was whether ANH should be withdrawn. It is important to note that no advance decision had been made by the applicant.
The juThe judgment, running to 261 paragraphs, included summaries of evidence from the applicant's family, care home staff, nurses, care workers, as well ?as independent medical experts. Following this, the judge analysed the applicant's best interests with use of a balance ?sheet setting out the advantages of withdrawing ANH and the advantages of continuing ANH.
The judge held that it was difficult to assess the wishes and feelings of the applicant without any advance decision addressing the specific issues of ANH withdrawal. In conclusion, the judge decided that 'the importance of preserving life is the decisive factor' ?and therefore it was not in the ?applicant's best interests for ANH to be withdrawn. In doing so the judge did not hold that such treatment was futile, nor overly burdensome.
?Tipping the balance?E suffered from extremely severe anorexia and an application was made for the withdrawal of life-sustaining treatment. The case was again unique in that E, while lacking capacity, was in a highly conscious state and fully aware of her situation and the realisation that if she refused food it would lead to her death.
In this case there was an advance decision from the applicant which was submitted to the court as evidence of her wishes, albeit with certain equivocations. The judge held that the applicant did not have capacity at the time of making the advance decision and thus it was not taken into account.
In the end, the judge applied the balance sheet approach. The ju?are weighty factors on each side of the scales.' In this regard, the judge held that there was a possibility that treatment might succeed.
The judge accepted that the competing factors were 'almost exactly in equilibrium'; however, the balance seemed to tip in the direction of life-preserving treatment.
We must remember that the MCA 2005 and the jurisprudence surrounding it are still in their relative infancy. The courts so far have skirted over the real importance of the HRA and the Convention rights, with the conspicuous omission of article 5 '“ deprivation of liberty.
A recent application before the CoP involved the family of a Muslim man in PVS who, against the advice of the treating clinicians, wished for life sustaining treatment to continue as their religion calls for the prolongation of life. This case rather interestingly invokes a further Convention right of the ECHR, that of article 9 '“ a right to freedom of thought, conscience and religion.
The court ruled that it was lawful for the hospital trust to withhold treatment as it would not prolong life 'in any meaningful way'. A written judgment is still awaited in this case.
Such cases which involve decisions regarding the withdrawal or continuance of life-sustaining treatment will never gain universal support. Critics of the decision in E and W say that the courts (as well as the MCA 2005) have become too paternalistic, and that both decisions appear to assume a starting position that preserving life will always be in a person's best interests. Further criticisms regard the mind-set of the current judges who adjudicate these types of cases. Many are family judges who, as a result of the cases involving children, have a leaning towards paternalism.
Such criticisms invoking paternalism would not have been helped with the judge's intuition in the case of E. But ?what is the remedy here? If, as the ?judge said, his extensive balance sheet was at equilibrium, would the application of more law have assisted him? ?Probably not.
As the case of E in particular evinced, a judge can hear a wide-range of lay and medical evidence in relation to best interests, and still come to a conclusion based on subjective intuition.
The answer is for the ju