W v M & Ors

In an application concerning a person in a minimally conscious state, withdrawal of artificial nutrition and hydration must be determined by an objective assessment of the patient’s best interests under s.4 of the Mental Capacity Act 2005. The court must consider all relevant circumstances and weigh the advantages and disadvantages of withdrawal. Clinical stability is relevant, but is not a threshold condition. Preservation of life carries very great weight, although it is not absolute. Informal past statements about dependency or institutional care must be considered, but ordinarily carry limited weight where they were not a valid advance decision and did not specifically address the circumstances. The application was refused because M had positive experiences and a reasonable prospect of enhanced enjoyment through stimulation.

M suffered catastrophic brain damage after viral encephalitis and was initially diagnosed as being in a vegetative state. Proceedings seeking declarations authorising withdrawal of life-sustaining treatment were begun under the High Court’s inherent jurisdiction in 2007. Later assessment using SMART and WHIM established that M was in a minimally conscious state. The proceedings were transferred to the Court of Protection after implementation of the Mental Capacity Act 2005.

The central issues were whether withdrawal of artificial nutrition and hydration was in M’s best interests under s.4 of the Act, and, if treatment continued, what future care and treatment arrangements should be made.

1. Application refused. It was not in M’s best interests to withdraw artificial nutrition and hydration. The existing do-not-resuscitate order was continued. Other treatment decisions were left to the treating clinicians in consultation with M’s family and carers.
2. The distinction in Airedale NHS Trust v Bland [1993] AC 789 between a permanently insensate patient who cannot benefit from treatment and other cases did not justify excluding a balance-sheet analysis in a minimally conscious state case. Under s.4 of the Mental Capacity Act 2005, all relevant circumstances had to be considered. Clinical stability was relevant to the balance, but was not a precondition to undertaking it.
3. The court adopted the balance-sheet approach. Preservation of life was a fundamental principle carrying very great weight, though not an absolute rule. The court also considered pain, discomfort, distress, enjoyment of life, prospects of recovery, dignity, the patient’s past wishes and feelings, and the views of family members and carers.
4. Past statements that M would not want dependency or residential care were accurately reported but were informal, did not specifically address withdrawal of artificial nutrition and hydration in a minimally conscious state, and were not a valid and applicable advance decision under ss.24–26. They therefore carried no significant weight.
5. M was conscious, sensate, clinically stable and capable of some awareness, response and limited communication. Her life was not wholly or predominantly negative. There was a reasonable prospect that increased stimulation and a revised care plan would improve her positive experiences. Those matters, together with the strong presumption in favour of preserving life, outweighed the disadvantages of withdrawal.
6. Applications concerning proposed withholding or withdrawal of artificial nutrition and hydration from a person in a vegetative or minimally conscious state must be brought before the Court of Protection. Future applications should be supported by a SMART assessment, or similarly validated equivalent, and, for a patient diagnosed as minimally conscious, serial WHIM assessments or another validated recovery-tracking scale.

The application was initially made under the inherent jurisdiction of the High Court in 2007. It was transferred to the Court of Protection in 2010 following implementation of the Mental Capacity Act 2005. The present judgment determined the application at first instance.