Court of Protection solicitor, Hayley Bundey, looks at the moral and legal dimensions of forcing life sustaining treatment.
The following case highlights the difficulties which judges are faced with when deciding whether to force a person to undergo life sustaining treatment under the Mental Capacity Act 2005.
The case involved an application by a local authority for the court to make an order forcing life sustaining treatment to a 32 year old woman against her wishes.
She was suffering from extremely severe anorexia nervosa and other chronic health conditions. An emergency application was issued in the Court of Protection by her local authority. Her death was imminent, she was refusing to eat and was taking only a small amount of water. She was being looked after in a community hospital under a palliative care regime whose purpose was to allow her to die in comfort.
The woman was represented by the Official Solicitor as her litigation friend and the remaining parties to the court action were her parents, the local authority and the health authority.
The Judge considered this case to be the first example of an application before the Court where the issue was whether to order life sustaining treatment for a person who, while lacking capacity, was fully aware of her situation. The case stood in contrast to previous cases before the court involving patients in a permanent vegetative state or cases where the patient was very young or very old and suffering from an incurable terminal illness.
The woman was described as an intelligent, charming person who, while gravely unwell, was not incurable. She did not seek to die, but did not want to eat or be fed. She saw her life as pointless and wanted to be able to make her own decision knowing that that decision would lead to her death. The Judge also had to consider the fact that she had on two previous occasions attempted to make advance decisions refusing the treatment which was now being proposed.
The Position of the Parties
The parents did not want their daughter to die, but years of supporting her through a series of unsuccessful treatments meant that without further medical intervention having a real prospect of making a difference they felt their daughter’s wishes should be respected.
The medical staff were highly doubtful about further coercive treatment but offered to support whatever course was taken. The health authority itself adopted a neutral position.
The Official Solicitor, on behalf of the woman, relied on the advice of Dr Glover whose view was that it was not in her interests to be forcibly fed. However, on reflection, and having studied her medical records, he advised that if treatment which might return her to relatively normal life was available but had not so far been tried then she should receive it. The Official Solicitor therefore sought a declaration that forcing life sustaining treatment was in her best interests.
The Judge’s Decision
There was no doubt that the woman had an impairment of the mind in the form of her anorexia. Equally it was clear that she could understand and retain the information relevant to the treatment and could communicate her decision.
However, there was strong evidence that her obsessive fear of weight gain made her incapable of weighing the advantages and disadvantages of eating in any meaningful way. Her compulsion to prevent calories entering her system had become the card that trumped all others.
Further, by the time of the hearing she was subject to strong sedative medication and was in a severely weakened condition. She was described by her parents as being in a “drug haze”.
The Judge noted Dr Glover’s view that anyone with severe anorexia would lack capacity to make such a decision but also the parents’ view that an anorexia sufferer was in a Catch 22 situation regarding capacity because by deciding not to eat they prove that they lack capacity to decide at all. In the end he decided that the woman lacked capacity in her current situation.
Best interests: the factors
The advantages and disadvantages of each course of action were weighed up by the Judge as follows:
In favour of continued palliative care:
- It reflects her wishes;
- It respects her personal autonomy;
- It spares her the risks associated with treatment;
- It avoids the harrowing aspects of treatment;
- It allows her to die with dignity and close to home;
- Treatment has limited prospects of success; and
- Her parents and clinicians are at best sceptical about it.
In favour of forcing life sustaining treatment by forcible feeding:
- Without treatment she will die;
- Without treatment she will lose the chance to recover and lead a relatively normal life;
- There is medical opinion that she is treatable with some prospect of success; and
- The longer she lives, the greater the opportunity for her to benefit from treatment and to revise her views about her future.
At its simplest, the balance to be struck was stated as being the placing of value upon the woman’s life on the one hand and value of her personal independence on the other, with the above factors being weighed in the light of the reality of her actual situation.
Decision on best interests
The Judge regarded the balancing exercise to be an intuitive one rather than a mechanistic one.
Having considered the fact that those who knew the woman best did not favour the treatment, the severity and risks of the course of treatment involved, the fact that the family and carers were already a long way down the course of palliative treatment and that the woman was of an age and intelligence which should afford her views high respect, the Judge found that the woman’s life was too important as to outweigh those factors.
He was assisted in this judgment by the fact that treatment was not futile, there was a possibility of it succeeding, the nature of the treatment was different from that previously tried and those closest to her were not in outright opposition to it.
While he found the competing factors were almost exactly in equilibrium, in the end he decided that the presumption in favour of the preservation of life was not displaced.
The Judge therefore ordered that it was in the woman’s best interests to be fed against her wishes, with all that this entails.
An interesting element to the judgment was the judge’s comment that had the local and health authorities not committed to providing the resources in the short, medium and long term necessary for the treatment required then he would not have reached the conclusion that he did.
While cases such as this are rare they are useful in illustrating the balancing exercise which the court must employ when making any ‘best interests’ decision under the Mental Capacity Act. More importantly it demonstrates that even where a person is aware of the issues involved in the case this is not sufficient for them to be found capable of making their own decisions.
If you would like to discuss the rules surrounding the “best interests” decision or applications for forcing life sustaining treatment then please call Hayley on 01823 354545 or email [email protected] for a free assessment.