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Court of Protection refuses the withdrawal of ANH from a patient in minimally conscious state

Court determines the ‘best interests’ of patient in minimally conscious state

The Court of Protection has heard the first case in this country in which a court has been asked to authorise the withdrawal of artificial nutrition and hydration (ANH) from a patient in a minimally conscious state. In W v M, S and A NHS Primary Care Trust [2011] EWHC 2443 (Fam) (COP) Mr Justice Baker weighed up the relevant factors and concluded that it is not in M's best interests to withdraw ANH and the application by her family was refused.  However, he continued an existing "do not resuscitate" order.

M had become ill in 2003 with viral encephalitis which left her with extensive and irreparable brain damage.  Initially it was thought that she was in a permanent vegetative state.  In the course of investigations, however, it transpired that she was in what was known as a minimally conscious state.  After some years and knowing she had no prospect of recovery, her family, with the support of her treating doctors, applied for a court order authorising the withdrawal of ANH. 

M's family's case was based on what they said were M's wishes and feelings.  The Mental Capacity Act 2005 requires the court to take into account the wishes and feelings of a patient when determining best interests.  The family relied substantially on view expressed by M before she became ill. However, M had not made a formal advance decision that she wanted ANH to be withdrawn in the circumstances that now existed.  Therefore, whilst the statements made by M when she had capacity were taken into account, they were not binding and Baker J considered that they did not carry substantial weight in all the circumstances.

The factor which did carry significant weight is the preservation of life.  Although not an absolute rule, the law regards the preservation of life as a fundamental principle.  Referring to previous case-law, Baker J expressed the "very strong presumption" in favour of taking all steps to prolong life and that save in exceptional circumstances, or where the person is dying, the best interests of the patient will require that such steps are taken.

The judgment considers the body of medical knowledge about M's condition as well as relevant case law and statutory provisions in some considerable detail.  The court also resolved the approach to be taken by the Court of Protection in determining the 'best interests' of a patient in a minimally conscious state. 

For the judgment and a detailed summary, please click here. For Sally Bradley's Court of Protection Update, including an analysis of this case, please click here.