Decisions about the treatment of patients who lack capacity are very difficult for healthcare providers, especially where it involves life-sustaining treatment.
This is demonstrated by the Court of Protection’s very recent judgment in St George’s Healthcare NHS Trust v P and Q  EWCOP 42.
The case concerned the Trust’s application for a declaration that it would be lawful to withdraw the provision of renal replacement therapy (RRT) to P who was thought to be in a Persistent Vegetative State (PVS). It would be an “inexorable and inevitable” consequence that P would pass away shortly after the RRT was withdrawn.
P’s family opposed the application, maintaining that P was in fact in a Minimally Conscious State (MCS) and that, consequently, treatment should continue.
The Court weighed the burdens of ongoing treatment against the benefits of continued living. Specifically, the Court considered the preservation of life, P’s responses to his family and friends, and the possibility that continued treatment may improve P’s awareness. Set against this were factors such as the potentially undignified and painful nature of the treatment, the lack of any independence and the fact that P was highly unlikely to make any meaningful functional recovery.
The Court concluded that the balance fell in favour of preserving P’s life through continued provision of treatment. This was on the basis that he was in MCS rather than PVS. He appeared to gain pleasure and comfort from the contact with his family, and did not appear to be in any pain.
Guidance for healthcare organisations
Whilst not criticising the treating clinicians (and noting a reported 40% rate of misdiagnosis of PVS), the Court identified this case as being “another stark example of the absolute necessity for a structured assessment to have occurred before any application is even contemplated (sic)”.
It is suggested in the judgement that, if a “further and proper” assessment had been conducted, the application (and therefore costs thereof) could have been avoided and the “widening … gulf” between the Trust and the family could potentially have been lessened.
This guidance and the facts of this case show how complicated it can be to work through this type of situation and demonstrates the lengths to which Trusts are expected to go before making a Court application. It is important that healthcare organisations take time to consider what information the Court will require (if such an application is necessary). Where the withdrawal of life sustaining treatment is concerned, expert evidence and/or further assessments must be sought prior to making any application, particularly where there is a family dispute.