In 2003, when she was 43 years old, M was preparing to go skiing. She never got there. Viral encephalitis plunged her into a coma. She gradually emerged from that coma into a Minimally Conscious State (MCS). In 2011, now 52, she hit the front pages of many UK newspapers when some of her family members made an application to the Court of Protection for withdrawal of the artificial nutrition and hydration (ANH) that were keeping her alive. The PCT caring for M, and her Litigation Friend (the Official Solicitor), opposed the application. There was no relevant Advance Decision.
Baker J found that M had some awareness of herself and her environment, and some understanding of language. She occasionally spoke herself, appeared to be able to appreciate some things that were said to her, and responded to music. She regularly experienced pain, but this was not constant or extreme. Her condition was stable. The prospect of any significant improvement in the level of consciousness was remote.
In reaching these findings, Baker J found, as many previous judges have found in comparable cases, that the carers who had moment to moment contact with M had the greatest insight into her condition. It was their observations that squared most accurately with the more objective results from the SMART and WHIM assessment tools.
He reviewed the authorities, beginning with the speech of Lord Goff in Airedale NHS Trust v Bland  AC 789. The only justification for continued ANH is that it is in the best interests of the patient. The burden of establishing that withdrawing ANH is in the patient’s best interests rests on the party asserting that it should be withdrawn: R (Burke) v GMC  QB 424, per Munby J. In deciding where the best interests lie, a balance sheet approach is appropriate: see Re A (Male Sterilisation)  1 FLR 549. This assessment is a holistic one: it is not only medical considerations that go into the balance sheet. The Mental Capacity Act requires the decision-maker to consider the patient’s wishes, feelings, beliefs and values, and other factors that would have been relevant to the patient had she had capacity, but the best interests test is not a test of substituted judgment. M’s previous comments about patients in vegetative state were not particularly helpful here:
‘… it does not follow from the fact that [M] indicated that she would not wish to [continue] living in a [vegetative state (VS)] that she would have wished to have ANH withdrawn when she was conscious, albeit minimally. We have no way of knowing how she now feels about her current life …’
Baker J concluded that it was not in M’s best interests for ANH to be withdrawn. The decisive criterion, on the facts of this case, was the old principle of the right to life/the sanctity of life: see, for instance, Lord Goff in Bland. Baker J said that the ‘principle of the right to life is simply stated but of the most profound importance. It needs no further elucidation. It carries very great weight in any balancing exercise.’
Baker J concluded with some practice points:
- Decisions about the withdrawal of ANH in cases of VS and MCS must be referred to the Court of Protection.
- Formal tools such as SMART and WHIM are crucially important in the assessment of such patients.
- ‘Consideration should be given to extending the right to non-means-tested public funding to families members seeking to bring this type of application.’
Although no case re the withdrawal of ANH in an adult with MCS has been litigated before in England, and despite the media hype, this is not a legally ground-breaking case. It was determined by the application of well-established principles in a well-established way. There is no doubt that MCS has been under-diagnosed in the past. The Court of Protection can expect to see many more such cases.