Best interests: striking a fair balance

Date published

25/04/2018

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The exercise of seeking to determine what the best interests are of an individual involves a careful balance between the principle of personal autonomy and the presumption in favour of preserving life. No easy task.

In a recent case in which Kennedys acted, the facts presented a unique set of circumstances for the Court of Protection to grapple with.

In the (unreported) case of X v A Hospital NHS Trust [2018], the family of X applied to the court for withdrawal of clinically assisted nutrition and hydration. X is a man in his fifties who experienced brain injury in infancy leaving with him severe learning disabilities and requires assistance with all aspects of personal care. It was accepted that X had limited mental capacity to decide for himself.

The court was asked to determine whether it was in X’s best interests to withdraw the treatment to prevent further pain and suffering and allow X to die in a way his family considered was humane and respectful of his wishes.

The trust opposed the withdrawal of life-prolonging treatment. Whilst the trust accepted there was no reasonable prospect of improvement, it considered X could live in a stable condition indefinitely.

The trust’s evidence was that, although largely incapacitated, X was able to express some wishes, including his preference for certain TV channels and gain limited enjoyment, such as from the radio.

The family’s application was therefore based on how they thought X would want to live life. Their submission required the court - the objective decision-maker - to make a qualitative assessment on X’s standard of life; a question that is fundamentally subjective.

An objective standard

The complexity of such a qualitative assessment lies in the differences between an individual’s circumstances coupled with the innate resilience of humankind.

Most of us have, at some point, heard about a particular case or set of facts which have caused us to consider what we would do if faced with the same situation. For example, might an Olympic sprinter contemplating the loss of their legs consider they would be so incapacitated that life would not be worth living?

The reality is, of course, that we do not know how we would respond when actually faced with such a situation. The discussion around such hypothetical scenarios underpinned the family’s request of the court to decide whether X would choose to live incapacitated and entirely dependent on artificial means for survival.

The family looked to the arguments raised in Airedale NHS Trust v Bland [1993], in which the family of the Hillsborough Disaster victim gave uncontested evidence that Mr Bland would not want to be left in a permanent vegetative state.

X’s family pointed to Lord Goff’s poignant consideration in Bland that “account should be taken of the invasiveness of treatment and of the indignity to which a person has to be subjected to if his life is prolonged by artificial means.”

The court in the present case, whilst sympathetic to the family, were at pains to point out the stark differences between X and Bland – most notably, the lack of consciousness suffered by Mr Bland compared to the fact that X had limited capacity.

The court also considered the more recent case of R (Conway) v Secretary of State for Justice [2017], in which the High Court rejected Mr Conway’s application to assisted death. Mr Conway suffered from a form of motor neurone disease (which is a terminal condition) and did not regard removal of his ventilation as an acceptable way of ending his life and wanted the option of being provided (by professionals) with a fatal dose of a drug which he would then administer himself.

As with the attempt to draw comparisons to Bland, the court again outlined the differences between X’s case and that of Conway. In particular, Conway had full capacity and could make his own decisions with respect to his quality of life, concluding that he did not wish to get to a stage where he was not able to enjoy his life.

Comment

The case of X resolved out of court with the family accepting that X should receive life-sustaining treatment and return to court should any further matters arise.

Given how complex this policy-driven area is, it is difficult to see that the family’s challenge would have succeeded. Nevertheless, the case highlights how the discussion around withdrawal of treatment – as well as related issues like assisted dying – is likely to continue to evolve, requiring the court to determine whether a person’s quality of life is so poor, it is justifiably worth terminating.

Allowing others to make an assessment on the quality of life of another individual is always likely to be controversial. However, as the current case demonstrates – together with those earlier cases considered - the court’s priority is to assess and safeguard relevant competing legitimate interests and sufficiently protect the weak and vulnerable in society. For the time being, the element of earlier decision making, social policy and moral value judgments involved in such decisions is likely to remain paramount.

Read other items in the Healthcare Brief - May 2018