Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 court’s approach to earlier authorities
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Appellate history
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.
Key cases cited
24 authorities cited.
- Airedale NHS Trust v Bland [1993] UKHL 17
- Wyatt & Anor v Portsmouth Hospital NHS & Anor [2005] EWCA Civ 1181
- NHS Trust v A & Anor [2005] EWCA Civ 1145
- Burke, R (on the application of) v General Medical Council & Ors [2005] EWCA Civ 1003
- W Healthcare NHS Trust v KH [2004] EWCA Civ 1324
- In re T (Adult: Refusal of Treatment) [1993] Fam 95
- P, Re [2009] EWHC 163 (Ch)
- An NHS Trust v MB [2006] EWHC 507 (Fam)
- Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2941 (Fam)
- Portsmouth NHS Trust v Wyatt & Ors [2004] EWHC 2247 (Fam)
- Burke, R (on the application of) v The General Medical Council Rev 1 [2004] EWHC 1879 (Admin)
- An Hospital NHS Trust v S & Ors [2003] EWHC 365 (Fam)
- A v A Health Authority (J (A Child), In re, R (S) v Secretary of State for the Home Department) [2002] Fam 213
- NHS Trust A v M (NHS Trust B v H) [2001] Fam 348
- Jehovah’s Witnesses of Moscow v Russia [2011] 53 EHRR 4
- Glass v United Kingdom [2004] Lloyd's Rep Med 76
- Pretty v United Kingdom [2002] 35 EHRR 1
- In re S (Adult Patient: Sterilisation) [2001] Fam 15
- Re AK (Medical Treatment: Consent) [2001] 1 FLR 129
- Re A (Male Sterilisation) [2000] 1 FLR 549
- Re D (Adult: Medical Treatment) [1998] 1 FCR 498
- Herczegfalvy v Austria (1992) 15 EHRR 437
- In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33
- In re F (Mental Patient: Sterilisation) (F v West Berkshire HA) [1990] 2 AC 1
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Cases citing this case
10 later cases · 3 positive · 5 neutral · 1 caution · 1 negative
Most senior citing decisions:
- An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) and another [2018] UKSC 46 disapproved
- Z v University Hospitals Plymouth NHS Trust (NO 2) [2021] EWCA Civ 22 mentioned
- A (A Child), Re [2016] EWCA Civ 759 distinguished
- Q (A Child) (Withdrawal of Treatment), Re [2025] EWHC 2782 (Fam)
- J (A Child) (Withdrawal of Ventilation, Re [2025] EWHC 2247 (Fam)
- Mid Yorkshire Hospitals NHS Trust v NB [2022] EWHC 3682 (Fam)
- Kings College Hospital NHS Foundation Trust v Haastrup (Withdrawal of Medical Treatment) [2018] EWHC 127 (Fam)
- CWM TAF University v F [2015] EWHC 2533 (Fam)
- An NHS Foundation Trust v R (Child) & Ors [2013] EWHC 2340 (Fam)
- An NHS Trust v L & Ors (Rev 1) [2012] EWHC 4313 (Fam)
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