When deciding what is in the best interests of a patient who lacks capacity, the courts will take...
When deciding what is in the best interests of a patient who lacks capacity, the courts will take into account any wishes and feelings the patient has previously expressed but will consider them in the context of all the evidence. Recently, the Court of Protection ruled that a palliative care approach was in the best interests of an 83-year-old woman despite her having previously stated that she would want treatment to prolong her life.
The woman had signed an 'advance statement' in respect of her future care if she were to lose capacity, stating that she would want all treatments and care necessary to prolong her life. She later suffered a massive stroke, causing significant brain damage. She demonstrated significant intolerance to a nasogastric (NG) tube and had not regained swallowing functionality when it was removed. She was discharged home, but had to be readmitted to hospital on a number of occasions. On one of those occasions, she declined a further NG tube insertion.
Her health deteriorated further and, following meetings between clinicians and with her sons, the NHS trust responsible for her care applied to the Court for a declaration that it would be lawful and in her best interests not to provide artificial feeding or intravenous fluids but to take a palliative care approach. Her sons opposed the application.
Clinicians gave evidence that the woman's condition was critical and irreversible. Feeding via an NG tube or a percutaneous endoscopic gastrostomy (PEG) tube would not be appropriate, and a PEG tube would carry many complications, with a low likelihood of clinical benefit. She was unlikely to live longer than a month. Her sons, however, considered that an NG tube should be inserted immediately, after which she would recover to a point where a PEG insertion might become possible. They felt that her advance statement was being ignored, and did not accept that she was at the end of her life.
There was no dispute that the woman lacked capacity. Turning to her best interests, the Court found the medical evidence to be compelling. The Court was confident that when she had signed the advance statement, she had expressed her wishes at that time. However, she had found the NG tube painful and uncomfortable, and had rejected a further NG tube after being readmitted to hospital, clearly indicating that she did not want it. The Court considered that, in accordance with Section 1(2) of the Mental Capacity Act 2005, it should presume that she had had capacity at the time: the clinicians had thought so, and there was no evidence to the contrary.
The Court observed that this was not a case where the NHS trust was seeking to withdraw life support, leading to death in a matter of hours. It was seeking authorisation not to provide treatment that had a remote chance of extending her life for a very short period of time but would carry risks and burdens, including intolerable pain and discomfort.
The Court considered it relevant that an NG tube would effectively preclude the woman from returning home. In the Court's judgment, it was likely that she would prefer to be at home, surrounded by her loved ones, than on a hospital ward. She would also likely prefer to be as comfortable as possible rather than be subjected to invasive and distressing treatment.
The sad reality of the case was that her interests were best served by authorising the NHS trust to withhold the medical steps referred to in the application and move to a palliative care plan. The Court appreciated that this would be a bitter blow for her sons, but hoped that they would focus on the remaining precious time with their mother.
