Continuation of life-sustaining treatment not in Mrs P’s best interests – ascertaining what the patient would have wanted

Friday 10 November 2017

Salford Royal NHS Foundation Trust v (1) Mrs P (by her litigation friend, the OS) (2) Q [2017] EWCOP 23

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Salford Royal NHS Foundation Trust v (1) Mrs P (by her litigation friend, the OS) (2) Q [2017] EWCOP 23

The Trust applied for a declaration that it was in Mrs P’s best interests to receive clinically assisted nutrition and hydration (CANH) by way of a gastric feeding tube. Following a fall, Mrs P, aged 72 years, went to hospital without telling her family. Her condition deteriorated and she fell into a minimally conscious state. A dispute arose as to whether CANH should be continued between her sisters who wanted treatment to be maintained and her partner and daughters who did not.

The Judge noted that the lawyers had discouraged Professor Wade and Dr Walton’s efforts to identify what Mrs P would have wanted for herself. He held that such restraint was ‘misconceived’ as it would have deprived the Court of their experience and expertise in this area.

Evidence was heard from Mrs P’s sisters, daughters, partner, friends and two of her grandchildren. The Judge had ‘the real opportunity to get to know something of Mrs P through the evidence of her family and friends. In this case, the very fact of the disagreements and tensions between them has led, paradoxically, to a clearer picture of who Mrs P is and what she would want’ [para 24].

In ascertaining what Mrs P would have wanted, the Judge referred to a hospital note of a discussion between clinicians and Mrs P’s daughters in which the daughters volunteered ‘that their mother had previously expressed a wish not to be kept alive if severely handicapped especially if mental function affected severely’. Hayden J found it was likely to be an accurate reflection of their mother’s own views and beliefs as it had arisen spontaneously.

The context of an email which Mrs P had sent to her daughter Q, three years previously was examined.  It read,

Did you see that thing on dementia?  Made me think of Dad and what a travesty of life his last years were and all the sadder as he had such incredible talent. You know I miss Mum every day and still talk to her but it is a comfort that she went quickly and I am still haunted by how he ended up… Get the pillow ready if I get that way!... Love Mum

The Judge held that the communication was in the specific context of her view of life without consciousness or thought which she identified as ‘a travesty’, and was  a powerful indicator of Mrs P’s own wishes, reinforced by her own actions, concealing her health issues and deliberately not informing her family about them.

Declining the Trust’s application, he held

‘[Mrs P’s] present high level of dependency and minimal awareness would, to her, have been ‘a travesty of life’… Many other people have wholly different views; Mrs P is entitled to hers. Her incapacitous state does not mean her wishes can be disregarded. Her family, each of them, has permitted her voice to be heard and thus enabled her to assert her own autonomy.'

 

The full judgment is available here: Salford Royal NHS Foundation Trust v (1) Mrs P (by her litigation friend, the OS) (2) Q [2017] EWCOP 23

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