Judgment in this case, which has been widely reported in the press, was handed down on 20 December 2016. It concerned an application brought by Mrs Lindsey Briggs, seeking a declaration from the court that it would not be in the best interests of her husband, Mr Paul Briggs, to continue to receive life-sustaining treatment in the form of clinically assisted nutrition and hydration. Mr Justice Charles, hearing the application, made the declaration asked for and as we have recently heard, Mr Briggs passed away peacefully at a hospice on Saturday 21 January 2017.

Evolution

The approach to cases raising issues of life and death has evolved since the issues were first raised in the case of Airedale NHS Trust -v- Bland [1993] AC 789. The authorities (case law) are all agreed that the starting point is a strong presumption that it is in a person’s best interests to stay alive. As Sir Thomas Bingham MR said in Bland ‘A profound respect for the sanctity of human life is embedded in our law and our moral philosophy’. That said, this is not an absolute, and there will be cases where it will not be in a patient’s best interests to receive life-sustaining treatment. Every patient is different, as is every case. It is important to remember also the important distinction between the continued lawfulness of providing life-sustaining treatment and the taking of a positive step (by act or omission) to cause the death of another.

As per Mr Justice Charles the ‘definition of the question is crucially important …and that it is not whether it is in the best interests of the patient that he should die but whether it is in the best interests of the patient that his life should be prolonged by the relevant treatment and care..’

The approach established in Bland was that life prolonging treatment of a patient in a permanent vegetative state (PVS) is properly regarded as being, in medical terms, useless or futile or that life-prolonging treatment confers no benefit on the patient. The decision whether to continue life-prolonging treatment does not, therefore in such cases, involve a weighting operation of competing factors. Yet in other cases, it will.

It was approximately six years ago, in the case of W -v- M [2011] EWHC 2443, that the Court of Protection was first asked to authorise the withdrawal of treatment for a patient (M) in a minimally conscious state (MCS). In reaching the decision that treatment should not be withdrawn, Baker J said: ‘I have to take into account the fact that M has lived in her current MCS for many years. We have no way of knowing how she now feels about her current life. In those circumstances, the court must be particularly cautious about attaching significant weight to statements she made before her collapse.’ And indeed that was the approach followed in W Healthcare NHS Trust -v- H and others [2005] 1 WLR 834 which addressed the law pre the Mental Capacity Act 2005 (MCA) where the views of the patient, KH, were articulated by family members.

In Aintree University Hospitals NHS Trust -v- James [2014] AC 509 (the leading authority) Lady Hale said: ‘When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?’

Apart from an assessment as to diagnosis, prognosis and whether the patient is in a PVS or MCS, an assessment of what is in the patient’s best interests needs to be undertaken, as do the advantages and disadvantages of the treatment proposed.

The Supreme Court concluded in Aintree Hospitals that the MCA best interests test is to be applied in a holistic way and ‘that the MCA, and a holistic application of the best interests test, are concerned with enabling the Court to do for the patient what he could do for himself if he had full capacity’. But it is important to keep in mind that the Supreme Court is ‘not saying that a conclusion on what the relevant patient would have wanted and done if of full capacity is determinative of his best interests having regard to all the circumstances. Indeed there are many examples of cases in which it has concluded that this is not the case.’

Analysis

The Aintree Hospitals and Briggs case are ‘must reads’ for clinicians who are routinely engaged in consideration of life and death issues. In reaching a view as to what is in a patient’s best interests the following key principles should be kept in mind:

  • the default position is founded on the sanctity of life
  • the MCA best interests test is not a substituted decision test (although it includes elements of that approach) and is to be applied in a holistic way
  • the test is not a ‘what P would have done test’, it is a best interests test and so a test that requires the decision maker to perform a weighing or balancing exercise between a range of divergent and competing factors
  • the court must assess whether it can reach a conclusion from the evidence as to what the wishes of the patient would have been in relation to continued treatment. If it is able to reach such a conclusion, it must consider what weight should be given to those wishes and balance them alongside the other relevant factors which include factors that the patient has not considered or not been able to consider
  • this effect of a valid and applicable advance decision is an example of a situation when the principle of self-determination has precedence over the very strong presumption of preserving life
  • it is the application of the MCA, rather than the common law and inherent jurisdiction that matters
  • the central clash of principles that arise are: (1) the sanctity of life and so the preservation and prolongation of life and the autonomy; and (2) self-determination which enables a person with capacity to do so to refuse life-sustaining treatment and so, as a consequence, to choose the side-effect of death

The decision in the Briggs case presents a striking contrast to cases involving individuals with capacity, such as Tony Nicklinson, who have to date lost their fights for a right to die. The ethical journey in this field looks set to continue and whilst it does, the enormity of the decision that has to be made by those who regrettably find themselves in Mrs Briggs’ position as well as the clinicians (and the judiciary) cannot be underestimated.

Although many people may state in passing that they do not want to receive particular treatments in this situation, few take the steps to formalise this. It is in one way surprising that lasting powers of attorney and advance decisions are drawn up as infrequently as they are. Perhaps a lesson that emerges from tragic cases such as these is to raise awareness and encourage the public to consider doing so routinely and to remember also, that there is no right or wrong answer.