When hospital patients are in a perilous condition, they very often lack the capacity to make decisions for themselves and/or lack the ability to communicate their views on how they should be treated. In such circumstances, decisions must be taken by medical practitioners, consulting the patient’s relatives unless the patient has executed a Power of Attorney and authorised others to make decisions on their behalf.
Any decision taken on behalf of a patient must be in that patient’s best interests, referencing to the best interests criteria in section 4 of the Mental Capacity Act 2005. Here is a recent example of this:
A 63-year-old pilot GU was electrocuted and drowned whilst cleaning his pond. He suffered a heart attack and other complications. He was kept alive by Clinically Assisted Nutrition and Hydration (CANH) but was unconscious during his treatment.
Not all of GU’s family members agreed whether he should be kept alive using CANH and due to the lack of consensus, the hospital carried on treating the unconscious patient this way. Proceedings began in the Court of Protection due to the lack of agreement.
The Court of Protection heard evidence from GU’s brother and some other family members that GU had previously told them he would not want to be kept alive if he was in this sort of situation and had lost his mental faculties.
Other family members disagreed and the hospital argued that it was their duty to provide care to their patients, which meant they were to preserve life. The dissenting family members were not able to establish why it was in GU’s best interests to be kept alive via CANH however.
The Court’s decision
On 11 November 2021, the Court of Protection decided that it was not in GU’s best interests to be kept alive by CANH. GU’s treatment was stopped and he passed away a few weeks later, having never regained consciousness.
In their judgement, the Court confirmed that in going against GU’s wishes, keeping him alive by CANH violated his right to human dignity. It was very relevant that GU’s historic wishes were not to be kept in this particular condition.
The Court found that GU’s treating clinicians were aware that by August 2018, when GU’s brother pressed for a best Interest decision, GU was “in a prolonged disorder of consciousness for which there had been no change or any prospect of future change. Treatment was both futile and, at least potentially, burdensome…”
The Court was careful to point out that this judgment was both case and person-specific and many factors need to be considered including:
- The person’s health, capacity, and seriousness of injury or illness;
- The person’s right to dignity; and
- Any wishes and feelings the person had expressed before they became ill or injured.
The Court emphasised that it was important to respect a person’s dignity and right to human autonomy, i.e. their right to decide how to live and in this case, the right to decide when not to be kept alive. The case, unsurprisingly, brought a lot of distress to GU’s brother, his other family members who had differing views, and hospital staff. However, the case might not have been heard by the Court had there been a Lasting Power of Attorney (LPA) for Health and Welfare Decisions, or an Advanced Directive, also known as a Living Will.
GU could have made an LPA for Health and Welfare, appointing attorneys to make decisions about his health welfare when he had lost mental capacity and was unable to decide for himself. The document can include life-sustaining treatment decisions including whether or not to have CANH treatment.
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