W Healthcare NHS Trust v KH

An adult with capacity may make an advance refusal of treatment which binds future practitioners. The refusal must be clearly established and applicable to the particular circumstances. Any doubt is resolved in favour of preserving life.

Where an adult lacks capacity and has made no applicable advance refusal, treatment is governed by the patient’s best interests rather than substituted choice. In cases concerning life-prolonging treatment, the touchstone is whether continued life would be intolerable. The court makes that assessment objectively and places a heavy burden on anyone advocating a course which will inevitably end life.

A 59-year-old woman with advanced multiple sclerosis lacked capacity and received nutrition through a percutaneous gastrostomy tube. After the tube became accidentally dislodged, the treating clinicians unanimously favoured its reinsertion. Her family opposed reinsertion, relying on her earlier statements that she did not wish to be kept alive without a reasonable quality of life.

Coleridge J permitted the NHS trust to reinsert the tube. The patient’s brother and daughter appealed. The issues were whether her earlier statements constituted a binding advance refusal and, if not, whether reinsertion was in her best interests.

1. Appeal dismissed unanimously. Brooke LJ delivered the leading judgment. Clarke LJ agreed with his reasons, and Maurice Kay J agreed that the appeal must be dismissed.
2. The governing inquiry had three stages: capacity, any binding advance refusal, and best interests. It was common ground that the patient lacked capacity. The law therefore required a best-interests assessment unless she had previously given a clear and applicable direction refusing the proposed treatment.
3. Personal autonomy permits an adult with capacity to refuse an infringement of bodily integrity, including the insertion of a feeding tube. An anticipatory refusal binds practitioners only if it is clearly established and applies to the particular circumstances. The patient’s earlier statements strongly expressed her general wishes about quality of life, but they did not specifically address withdrawal of nutrition or the prospect of death from lack of food and drink over several weeks. They therefore did not constitute a binding advance refusal.
4. In the absence of an applicable advance refusal, the court had to determine the patient’s best interests rather than attempt to make the choice she might have made. The touchstone in this context was intolerability. The court ordinarily asks objectively whether continued life would be intolerable. A formulation based on what the patient would consider tolerable risks importing the rejected substituted-choice approach.
5. The first-instance judge properly considered the consequences of withdrawing nutrition against the benefits and burdens of continued life. The patient retained consciousness, sensation and some slight responsiveness. He was entitled to find that continued feeding conferred some benefit and that death through deprivation of nutrition would be less dignified than continued life. English law imposed a very heavy burden on those advocating a course which would inevitably end a human life.
6. The balancing judgment belonged to the first-instance judge. An appellate court could interfere only for a legal misdirection or a recognised error in the exercise of judgment. Neither was established, so the order permitting reinsertion of the tube remained in force.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 1324, the court unanimously dismissed the family members’ appeal and left the order permitting reinsertion of the feeding tube undisturbed.
2. High Court, Family Division: Coleridge J permitted the NHS trust to reinsert the feeding tube. He found no binding advance refusal and held that reinsertion was in the patient’s best interests.