A diminished life is a life nonetheless says Court of Protection judge

Last week saw the Court of Protection conduct its first Skype trial, involving the difficult and emotive decision to withdraw life sustaining treatment from a patient in their 70s who had suffered a stroke.

In a judgment handed down remotely by Mr Justice Mostyn today, he has concluded that it is in a patient’s best interests to continue to receive Clinically Assisted Hydration and Nutrition (CANH).

Briefly, P had a PEG inserted in hospital after a severe stroke which left him without capacity. He was then moved to a care home in the community.  At a best interests meeting in November 2019, the GP made a decision that the CANH should continue which was strongly disputed by P’s daughter. As a result the CCG applied to the Court of Protection. Mills & Reeve acted on behalf of the CCG.

The detailed facts of the case are set out in the judgment but a short summary is as follows:

• Although physically able to eat and drink P did not do so.
• Pre-stroke P stated on many occasions to those close to him that he would not want to be kept alive as a “body in a bed”.
• Post stroke and while in hospital P started to refuse food and said that he wanted to die (he attempted to pull out his feeding tube on a number of occasions). However, virtually all of the expressions of wishing to die were made by P after he had lost capacity, based on one expert’s opinion, that the Judge accepted.
• Prior to discharge to a care home in the community a  PEG was inserted under sedation. It is recorded that he continued to state that he wished to die.
• P’s present existence at the care home is limited but had improved from the time at hospital. From the evidence it was clear that P derives pleasure in a number of ways from both physical and emotional stimuli. In brief,  this included that although he is fed by PEG he does enjoy certain foods from time to time (doughnuts and chips included!), he enjoys the company of animals and children and poetry being read to him. One carer gave particularly moving evidence relating to his reaction to a war poem. Although communication is limited, occasionally, he would form full sentences and there was evidence that he was a very good communicator either by eye contact or gestures
• The judge was satisfied that were CANH to be withdrawn P would not take sufficient food and drink orally to sustain life and would, sooner or later die.

Mr Justice Mostyn’s clear and direct conclusion was that:

"…it would be categorically contrary to [P’s] interests for him to be set on the path that will lead to his inevitable death from starvation. This may be a diminished life, but it is a life nonetheless which has, as I have said, intrinsic quality and from which [P] derives pleasure and satisfaction."

Counsel for P’s daughter argued that P had the right to self-determination and to have his autonomy respected. Essentially that the past capacitous P should determine the fate of the present incapacitous P. Other counsel in the case, including the Official Solicitor and the CCG’s counsel, did not dispute the relevance of this principle but did not agree that decisive weight should be given to it.

In the words of the judge:

"It is one of a number of factors to be put into the mix when making the holistic best interests evaluation. Of, at least, equal merit or importance is the principle of preservation of human life, as well as the fact that while P’s present life is markedly diminished compared to his life before his stroke, it is still a life which has intrinsic quality and from which he appears to derive appreciable pleasure."

Of particular relevance, in the case, was evidence from Dr Grace, a neuro-psychiatrist, who stated that “it is very difficult to know his subjective views since the stroke”. Mr Justice Mostyn did consider what P may have considered had he been granted a moment of lucidity but did not consider that he would be better off dead rather than to continue with the limited life that he presently enjoys. The judge noted that had P done so it would be: "impossible to conceive that he would ever have written an advance decision mandating being starved to death were he to find himself in his present position."

Mr Justice Mostyn also noted that had he reached the opposite conclusion, then this decision would have given rise to complex legal and ethical questions including the impact of article 2.1 of the European Convention on Human Rights and the provision: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally …” and the meaning of section 4(5) of the Mental Capacity Act 2005 which provides that “where the determination relates to life-sustaining treatment [the decision-maker] must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.” Although, submissions were provided on this point by the parties involved, the judge decided not to provide any obiter comments. This is likely, however, to be a matter considered in future COP cases.

Comment

This decision is an important one, as it reconfirms the best interests evaluation mandated by section 4 of the Mental Capacity Act 2015 but that it also makes a clear distinction between other cases concerning continuation/withdrawal of CANH against the facts of this case where P had the degree of functionality, as summarised above and, set out in detail in the judgment.

On a personal note, and having listened to the evidence in this case, it is an insight into the importance of the simple pleasures that we can all appreciate including, as in this case, interaction with kind and caring staff, enjoyment from spending time with children and animals and being read to. These are things that can easily be brushed off as insignificant, but as is evident by this judgment should never be undervalued.