Orders to force Life-Sustaining Treatment: When is it right?

Court of Protection solicitor, Hayley Blyth, looks at the moral dimensions of life sustaining treatment

The following case has highlighted 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

Overview

The case of Re E (Medical Treatment: Anorexia) (Rev 1) [2012 EWHC 1639 (CoP) involved an application by a local authority for the Court to order that life sustaining treatment should be given to a 32 year old woman against her wishes.

E was suffering from extremely severe anorexia nervosa and other chronic health conditions such that the emergency application was issued in the Court of Protection by her local authority on 18th May 2012. E’s 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.

E was represented by the Official Solicitor as her litigation friend and the remaining parties to the claim 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, whilst lacking capacity, was fully aware of her situation (as compared 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).

E was described as an intelligent, charming person who, whilst 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 E had, on two previous occasions in 2011, attempted to make advance decisions refusing the treatment which was now being proposed.

The Position of the Parties

E’s parents did not want E 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 E, 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 E to relatively normal life was available but had not so far been tried that she should receive it. The Official Solicitor therefore sought a declaration that forcible feeding was in E’s best interests.

The local authority, which brought the proceedings, was initially neutral but ultimately supported Dr Glover’s proposal. It did not put forward any evidence of its own.

The Judge’s Decision

Capacity

There was no doubt that E had an impairment of, or a disturbance in the functioning of, the mind or brain in the form of her anorexia. Equally it was clear that in terms of MCA s. 3(1) she could understand and retain the information relevant to the treatment decision and could communicate her decision.

However, there was strong evidence that E’s obsessive fear of weight gain made her incapable of weighing the advantages and disadvantages of eating in any meaningful way. For E, the 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 E 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 E’s wishes
    • It respects E’s personal autonomy
    • It spares E the risks associated with treatment
    • It avoids the harrowing aspects of treatment
    • It allows E to die with dignity and close to home
    • Treatment has limited prospects of success
    • E’s parents and clinicians are at best sceptical about it

In favour of treatment by forcible feeding:

    • Without treatment, E will die
    • Without treatment, E will lose the chance to recover and lead a relatively normal life
    • There is medical opinion that E is treatable with some prospect of success
    • The longer E 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 E’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

In E’s situation, the Judge found the balancing exercise to be an intuitive one rather than a mechanistic one.

Having considered the fact that those who knew E 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 embarked a long way down the course of palliative treatment and that E was of an age and intelligence which should afford her views high respect the Judge found that E’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.

Whilst he found the competing factors were almost exactly in equilibrium in the end he found that the presumption in favour of the preservation of life was not displaced.

The Judge therefore decided that it was in E’s best interests to be fed against her wishes, with all that this entails.

The Judge then found that the treatment plan under discussion in the case was illustrative and that the course of treatment must be a matter for the professional judgment of the medical team.

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.

Analysis

Whilst cases such as this are rare they are however 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 under the MCA or applications for life-sustaining treatment then please call Hayley Blyth on 01823 354545 or email hayley.blyth@sleeblackwell.co.uk for a free assessment.

Author: cpl

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