Wed, 17 Sep 2014
By Nageena Khalique
This recent case in the Court of Protection considered best interests in the context of a minimally conscious patient and whether it was lawful for the applicant trust to cease making further efforts to maintain artificial nutrition.
In June 2013, N who was in her mid 50s suffered a sub-arachnoid haemorrhage. She was then diagnosed as being in a minimally conscious state and deemed to lack capacity to make decisions in respect of her medical treatment. In mid June 2014, N was admitted to hospital from the nursing home where she had been living because the PEG tube through which she was fed was no longer in place. N had been physically resistant to all attempts by medical staff to re-insert the PEG or establish an alternative method of providing her with nutrition. She had physically pulled out a naso-gastric tube and several cannulae. Consequently, N had not been receiving any nutrition from 14 June 2014. By the time the trust had issued an urgent application, N had not been receiving nutrition for several weeks and it was approximately 32 days when the matter came before Pauffley J.
The court heard of the numerous attempts made to re-establish artificial feeding, and the possibility of a jejunostomy (a tube inserted into a fistula through the abdominal wall into the jejunum, part of the small intestine) which carries a high risk of small bowel perforation and leakage of feed and intestinal contents into the abdominal cavity, which would be life threatening and very painful, if pulled out.
The Official Solicitor acted as N’s litigation friend and the parties instructed a joint expert, a consultant physician and gastroenterologist, Dr Barry Jones. Dr Jones's view, was that to impose a possible feeding treatment regime upon N would not be in her best interests. In respect of maintaining the infusion of intra venous fluids through the cannula into N's foot, Dr Jones's opinion was it would be better to withdraw fluids altogether so as to allow N a peaceful and dignified death.
The views of the family were that N had been a private person and that N has no quality of life. She had previously discussed her wishes and feelings in the event of a catastrophic road traffic accident with a close friend.
In considering the legal framework Pauffley J emphasised that firstly, there is a strong presumption in favour of the preservation of life (Re M (Adult patient) (Minimally conscious state: withdrawal of treatment)  1 WLR 1653, paras 7, 220, 222), this being the paramount consideration for the court. Secondly, the court will not order medical treatment to be provided if the clinicians are not willing to offer that treatment on the basis of their clinical judgment (see AVS and a NHS Foundation Trust  EWCA Civ 7, per Lord Justice Ward at para. 35).
Pauffley J [at 54] also relied on Lady Hale’s observations in Aintree, [para19-22]:‘However, any treatment which the doctors do decide to give must be lawful. As Lord Browne-Wilkinson put it in Airedale NHS Trust v Bland  AC 789, which concerned the withdrawal of artificial hydration and nutrition from a man in a persistent vegetative state, “… the correct answer to the present case depends upon the extent of the right to continue lawfully to invade the bodily integrity of Anthony Bland without his consent. If in the circumstances they have no right to continue artificial feeding, they cannot be in breach of any duty by ceasing to provide such feeding” (p883). Generally, it is the patient’s consent that makes invasive treatment lawful.…… the fundamental question is whether it is lawful to give the treatment, not whether it is lawful to withhold it.
Thirdly, Pauffley J stated that when considering the best interests of a patient the court must consider whether the treatment in issue would be futile  in the sense of being ineffective or being of no benefit to the patient. The treatment does not have to be likely to cure or palliate the underlying condition or return the patient to full or reasonable health, rather it should be capable of allowing the resumption of a quality of life which the patient would regard as worthwhile. The Court must weigh the burdens of the treatment against the benefits of continued existence and give appropriate weight to N's family life.
Finally Pauffley J went on to apply the balance sheet approach, considering the advantages and disadvantages of re-inserting PEG artificial feeding method. Having heard all the evidence, and being particularly impressed with the independent expert, Dr Jones, Pauffley J declared that it was not in N's best interests for the trust to make any further attempts to establish and maintain a method for providing N with artificial nutrition whether that was by re-inserting a PEG or any other method.
The declaration was portentous because it goes much further than any case before the Court of Protection involving a protected party in a minimally conscious state.
An important and leading case on minimally conscious state and best interests, W v M was considered carefully by Pauffley J referring to the judgment of Baker J in N’s case. However, the W v M case is not on all fours with the present case. Firstly W v M was different on the facts as it was primarily concerned withdrawal of ANH rather than the decision not to keep offering methods of administering ANH (there had been no ANH for 32 days, it was not withdrawn, N had removed her PEG and the doctors could not physically re-insert it). However, Pauffley J’s analysis focussed on the specific issue of whether continued PEG feeding was in N’s best interests. Although the main issue in N’s case was not providing treatment rather than withdrawal of it, Pauffley J did in fact also make a declaration that the withdrawal of intravenous fluids and dextrose was in N’s best interests based on Dr Jones’ evidence.
Unlike in W v M, N was seen to be physically resistant to the provision of ANH but Pauffley J did not seek to ascribe to N wishes and feelings based on N’s physical resistance, but rather focused on previously sentient expressions of wishes and feelings. It is interesting that N’s previously expressed wishes when discussing the issue of an RTA with her friend were not dissimilar to the expressed wishes and feelings of the minimally conscious patient in W v M. In that case, M had said she did not wish to live in a home in declining health and wanted to “go quickly” which resonated with N’s expressed wishes. However, Pauffley J gave very significant weight to these past expressions, whereas Baker J in in M’s case did not give them the same level of weight.
Please click here to view the profile of Nageena Khalique (instructed on behalf of the Official Solicitor, representing N in the above case).