The NHS Trust v Ms D

In deciding treatment for an adult who lacks capacity, the court must determine what is in the patient’s best interests. That assessment extends beyond medical interests and includes welfare, dignity, suffering and other relevant circumstances. There is a strong presumption in favour of preserving life, but it is not irrebuttable. Treatment need not be provided where it would be futile or would impose burdens without commensurate benefit. The court must balance the advantages and disadvantages of the proposed intervention, focusing on the patient’s interests rather than the family’s wishes. Decisions about antibiotics may properly remain with treating clinicians, guided by the patient’s best interests.

The NHS Trust applied for declarations concerning the future treatment of Ms D, a 32-year-old woman with mitochondrial cytopathy, severe brain damage and an irreversible vegetative state. The medical evidence was unanimous that she had no awareness, no prospect of recovery and a life expectancy of no more than twelve months.

Ms D’s parents and other relatives believed that her movements demonstrated awareness and opposed withholding life-preserving interventions. The court had to determine her present condition, whether the proposed invasive interventions were in her best interests, and how antibiotic treatment should be addressed.

1. Capacity and condition. Ms D lacked capacity to make decisions about her future medical treatment. The court found that she was in an irreversible vegetative state and would die within twelve months, absent a miracle. The family’s observations were accepted as accurately reported, but their interpretation of the movements as signs of awareness was rejected; the movements were reflex or myoclonic activity.
2. Best interests. Best interests have a broad meaning and include medical, emotional and other welfare considerations. There is a strong presumption in favour of preserving life, but it is not irrebuttable, particularly where treatment would be futile or would provide no commensurate benefit. The court applied the approach in Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam), as endorsed in Re L (A Minor) [2004] EWHC 2713 (Fam).
3. Application. Artificial and highly invasive procedures offered Ms D no discernible benefit. A short extension of life would not advance her interests and further invasive treatment would diminish her dignity. The court’s focus had to remain on Ms D’s interests, not those of her family. High-quality palliative care and regular monitoring were in her best interests.
4. Antibiotics and order. The decision whether to administer antibiotics was left to the treating doctors, who were to decide from time to time what was in Ms D’s best interests. Subject to that qualification, the declarations sought by the Trust and supported by the Official Solicitor were granted.

First-instance decision. No prior appellate history was stated in the judgment.