Rebecca Fitzpatrick reviewed the landmark ruling which reflects a shift in mental capacity law towards a substituted judgment test, rather than a pure best interests test, when deciding difficult issues concerning those who lack capacity.

1. @BJhealthlaw

2. @BJhealthlaw
A shift in law towards a substituted
judgment?
10 December 2015

3. @BJhealthlaw
• Recap of the MCA best interests test – the
basics
• W v M (2011)
• Aintree University Hospitals NHS Hospitals
Foundation Trust v David James (2013)

4. @BJhealthlaw
• Re M (Best Interests: DoL) [2013] EWHC
3456 (COP)
• Re B 2015
• M v N, Bury CCG & A Care Provider (2015)
• Kings College Hospital NHS Foundation
Trust v C (2015)

5. @BJhealthlaw
• a person must be assumed to have
capacity unless it is established that he
lacks capacity
• a person is not to be treated as unable to
make a decision unless all practicable
steps to help him do so have been taken
without success

6. @BJhealthlaw
• a person is not to be treated as unable to
make a decision merely because he
makes an unwise decision
• an act done, or decision made, under this
Act for or on behalf of a person who lacks
capacity must be done, or made, in his
best interests

7. @BJhealthlaw
• before the act is done, or the decision is
made, regard must be had to whether the
purpose for which it is needed can be as
effectively achieved in a way that is less
restrictive of the person’s rights and
freedom of action

8. @BJhealthlaw
• section 4 checklist - person making
decision must consider all relevant
circumstances and in particular
• will the person have capacity in the
future and, if so, when?

9. @BJhealthlaw
• encourage the person to participate in
the decision
• must not be motivated by a desire to
bring about the person’s death (life-
sustaining treatment)

10. • must consider the person’s past and
present wishes and feelings, beliefs and
values that would influence him if he had
capacity
• must take into account the views of
anyone named who should be consulted,
anyone engaged in caring or interested in
the welfare of the person and any court
appointed deputy

11. @BJhealthlaw
• W applied for a court order authorising
the withdrawal of ANH from her daughter
M who was in a minimally conscious state
• when M was 43 she suffered viral
encephalitis and went into a coma never
recovering consciousness and left with
irreparable brain damage

12. • initially it was thought she was in PVS but
further assessments demonstrated she
was in MCS
• W submitted that M’s experiences were
predominantly negative and that
considering her wishes and feelings
before her illness and those of her family,
the withdrawal of medical treatment was
in her best interests under the MCA

13. @BJhealthlaw
• the OS however submitted that where a
person was in MCS and was otherwise
clinically stable, it could never be in their
best interests and therefore lawful to
withhold life sustaining treatment, or
alternatively a balance sheet approach
was applicable and came down in favour
of continuing treatment

14. @BJhealthlaw
• while the court was under an obligation
to consider M’s wishes and feelings, the
MCA test was not what M would have
decided if she had capacity, but an
objective test as to what would be in her
best interests

15. @BJhealthlaw
• all decisions about the proposed
withholding or withdrawing of ANH from
a person in PVS or MCS should always be
brought to the court
• any statements made by M before her
illness were informal and she had not
made any advance decision to refuse
treatment

16. @BJhealthlaw
• a balance sheet approach should be
followed (as per Bland) in all cases save
for where the patient is in PVS and
treatment considered futile
• M was conscious albeit minimally, was
clinically stable and able to respond to
her environment in a very limited way

17. • the preservation of life carries great
weight in the balancing exercise. It was
wrong to attach significant weight to
statements made by M before her illness.
M experienced some positive experiences
as well as pain and suffering
• the importance of preserving life was the
decisive factor and it was not in M’s best
interests for treatment to be withdrawn

18. @BJhealthlaw
• David James (68 yo) - admitted to
hospital in May 2012
• diagnosed with pneumonia and COPD –
deteriorated & admitted to ITU.
• July 2012 – suffered stroke (MCS)- no
capacity

19. @BJhealthlaw
• remained on unit - condition fluctuated,
severe setbacks (incl. a cardiac arrest &
multi-organ failure). Recurring infections.
Ventilator dependent.
• clinical team sought to withhold
– CPR
– invasive support for circulatory problems
– RRT

20. @BJhealthlaw
• family opposed – “treatment at all costs”
• when considering whether a treatment
offers a prospect of recovery, “recovery”
does not mean a return to full health, but
the resumption of a quality of life which
the patient would regard as worthwhile.

21. @BJhealthlaw
• assessment of the medical effects of a
treatment is only one part of the
equation - great weight had to be given
to Mr. James’ family life. The purpose of
the ‘best interests’ test is to consider
matters from the patient’s point of view,
and it is those wishes, which must be
taken into account.

22. • “…decision makers must look at his welfare in the widest
sense, not just medical but social and psychological”
Lady Hale

23. “In the end, if M remains confined in a home she is entitled to
ask "What for?" The only answer that could be provided at the
moment is "To keep you alive as long as possible." In my view that
is not a sufficient answer. The right to life and the state's
obligation to protect it is not absolute and the court must surely
have regard to the person's own assessment of her quality of life.
In M's case there is little to be said for a solution that attempts,
without any guarantee of success, to preserve for her a daily life
without meaning or happiness and which she, with some
justification, regards as insupportable.”

25. “I am quite sure that it would not be in Mr B’s best interests to
take away his little remaining independence and dignity to
replace it with a future for which he understandably has no
appetite and which can only be achieved after a traumatic and
uncertain struggle that he and no one else would have to endure.
There is a difference between fighting on someone’s behalf and
just fighting them. Enforcing treatment in this case would surely
be the latter”

26. @BJhealthlaw
• Daughter M applied for a declaration that
it was in her mother’s (N) best interests
for ANH to be withdrawn
• N aged 68 profoundly physically &
cognitively impaired due to progressive
degenerative impact of MS

27. @BJhealthlaw
• the medical experts agreed N could fix
and track objects within her line of vision
and that while some pragmatic
adjustments could be made to improve
her quality of life, such measures could
only be described as palliative care

28. @BJhealthlaw
• however N clinically stable and could live
for up to 5 years
• family evidence: N would not have
wanted to live like this or for ANH to
continue. N had not made an advance
decision.

29. Held
• where P’s wishes and feelings could be
ascertained with reasonable confidence,
they had to be afforded great respect.
The Act & Code placed great emphasis on
the importance of personal autonomy.
The central objective was to avoid a
paternalistic approach; an individual’s
right to self-determination existed
alongside the presumption of the
prolongation of life.

30. Held
• the presumption of life could be rebutted
on the basis of a competent adult’s
cogently expressed wish. It followed that
the importance of an incapacitated
person’s wishes and feelings,
communicated via family or friends with
similar cogency and authenticity, were to
be afforded no less significance.

31. Held
• as P was in MCS, an evaluation of best
interests had to involve a proper
identification of the advantages and
disadvantages of each proposed course.
However if P was in PVS that balance
sheet approach did not apply. Even very
limited cognitive function as here,
appeared inconsistent with PVS.

32. Held
• where some level of awareness remained,
a decision to withdraw treatment should
only be made after a full analysis of P’s
best interests
• no ‘right to die’ as such exists - what was
in issue was N’s right to live her life at
the end of her days as she would have
wished

33. @BJhealthlaw
Held
• the inviolability of life had to be weighed
against an individual’s right to self
determination and personal autonomy:
individual’s choices had to be respected

34. Held
• there was no prospect of N achieving a
life that she would consider meaningful,
worthwhile or dignified. Her wishes
coupled with the intrusive nature of the
treatment and its minimal potential to
achieve any medical objective rebutted
any presumption of continuing to
promote life. It would be disrespectful to
N to preserve her life further in a manner
she would regard as grotesque.

35. @BJhealthlaw
Held
• the application was therefore granted

36. @BJhealthlaw
“Socialite who didn't want to grow ugly
and poor dies at 50”
Mail online

37. @BJhealthlaw
• a patient whose life depended on
receiving kidney dialysis treatment did
not lack capacity to refuse such
treatment merely because her decision
might generally be regarded as unwise.

38. @BJhealthlaw
• although the medical evidence indicated
that she suffered from a personality
disorder which might be classed as an
impairment in the functioning of her
mind, she appreciated that her prognosis
was positive if she maintained the
treatment and had been able to use that
information and weigh it in the decision-
making process

39. @BJhealthlaw
• MailOnline “Revealed: Truth about the
socialite who chose death over growing
old and ugly... and the troubling
questions over a judge's decision to let
her do it”

40. @BJhealthlaw
• the Aintree Supreme Court ruling in 2013
established that great weight must be
given to considering P’s point of view and
wishes, when determining what is their
best interests

41. @BJhealthlaw
• we are starting to see this arguable shift
towards a substituted judgment test in
the most clear cut of cases reflected in
wider case law including withdrawal of
treatment or ANH

42. @BJhealthlaw
• it is essential therefore that practitioners
establish P’s wishes & those of their
family/carers wherever possible and give
those views due weight as part of the
decision making process where P lacks
capacity

43. @BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
rebecca.fitzpatrick@brownejacobson.com|01613008050