What happens when someone lacking mental capacity is receiving life sustaining treatment and the NHS wants to end that treatment?

What happens when someone lacking mental capacity is receiving life sustaining treatment and the NHS wants to end that treatment?

In a recent Court of Protection matter, Re P: Court of Protection: 2015.

P had a lifelong kidney problem that resulted in him receiving treatment for kidney failure. He then unfortunately suffered a heart attack which resulted in brain injury. This left him entirely reliant on care in an Intensive Care Unit. Without this care he would, relatively quickly, have passed away.

In January 2015, the Health Trust (the Trust) responsible for his care made an application to the Court of Protection.  They sought declarations regarding his therapy i.e. that they could discontinue life-sustaining treatment.  Doctors believed P was at this stage in a permanent vegetative state. The opinion was that due to the severity of the  brain injury, P lacked capacity as defined by the Mental Capacity Act to make decisions regarding his medical treatment.

However, the Trust had not carried out any testing to confirm that P was indeed in such a state.  His family contended that he was in fact minimally conscious. They also argued that removal of treatment would be against P’s religious views. Therefore, without formal standard tests being carried out, and taking into account his religious views, the ending of treatment would not be in P’s best interests.

The Court had to weigh up various issues but the main point was whether P was in a vegetative state or minimally conscious. The Court had to balance the question of treatment and likely success, i.e. was or is there any prospect of recovery or otherwise, how burdensome was the treatment, and the values and beliefs of P and what his wishes would be.

In the circumstances, the Court decided in favour of preserving P’s life. It was held that P had a relationship of love and affection with his family from which he gained comfort. This in turn supported the argument that he was in a minimally conscious state and that the treatment had a positive effect on his life and well-being.

There was no evidence of pain or discomfort on the part of P and the treatment had some prospect of success. Taken with his personal beliefs and values, and without anything to suggest it was not in P’s best interests to stay alive, the Court appeared to find this a relatively easy decision to come to.

Where such decisions are to be made by the NHS , the Court of Protection is there to carry out a balancing exercise.  Families can sometimes feel totally reliant on and indeed pressured by medical staff, but this case shows that there is room for disagreement, and that the court is there to assist all parties in reaching a decision which takes into account the full circumstances of a patient.  It also shows that, in the absence of formalised testing, it is harder for Trusts to make a case for a decision to withdraw treatment, especially where the family evidence is contrary to the medical opinions being asserted.

If you have any queries or questions on  Court of Protection or related issues please contact  James Trescothick-Martin, or any one of our Private Client Team.

Image by Mark Hillary under a Creative Commons Licence