Lack of Capacity is not an 'off Switch' for Rights and Freedoms: Wye Valley Nhs Trust V Mr B (By His Litigation Friend, the Official Solicitor) [2015] Ewcop 60

Dying too soon or living too long? Withdrawing treatment from patients with prolonged disorders of consciousness after Re Y

BACKGROUND

In the ruling in Y [2018], the UK Supreme Court has confirmed that there is no general requirement for the courts in England and Wales to authorise the withdrawal of clinically assisted nutrition and hydration from patients with prolonged disorders of consciousness. The perceived requirement, which originated in a court ruling in 1993, encompassed those in the vegetative state and those in the minimally conscious state. The ruling in Y confirms that the court may still be approached to decide difficult or contested cases, but there is otherwise no routine requirement that the judges be approached.

MAIN BODY

There is much to welcome in this ruling, particularly as it means that these decisions for these patients are no longer (unusually) singled out for a judicial decision, with all the financial and emotional costs that court proceedings can entail. However, there is also a risk that the ruling might have unwelcome consequences. First, there is the possibility that patients might die too soon, particularly if doctors should now adopt the courts' previous reasoning, which has suggested that patients in the vegetative state lack interests, so treatment may - perhaps must - be withdrawn. Secondly, there is the converse possibility that patients might live too long, since empirical research suggests that - whether intentionally or not - patients' families, clinicians, and the health system appear to promote treatment-by-default.

CONCLUSION

Rather than adopt general positions, which may be contestable and potentially risky, this article argues, on a pluralistic basis, that the individual patient should be the focus of any decision made in his or her 'best interests'. The existing legal framework in England and Wales, which is provided by the Mental Capacity Act 2005, already points in this direction, although more efforts may be needed to ensure that those involved in making these decisions are suitably educated and supported. Fortunately, new guidance from the British Medical Association could help clinicians and families to make decisions in the future, which are appropriate for the incapacitated individual patient in question.

Treatment in patients' best interests

A note on the current state of the law as regards balancing the autonomy, and personal values, of a mentally incapacitated patient against treatment plans with which they do not agree. The author summarises the outcomes of two medical treatment cases heard by the Court of Protection, with similar facts and different results, by way of adding to the advice to practitioners for their communications with patients and families in such situations.