A NHS Hospital Trust v M and K  EWHC 2402 (COP)
Best interests –medical treatment
The NHS Trust applied for declarations that it was not in M’s best interests to receive cardiopulmonary resuscitation (CPR), antibiotics or intensive care treatment.
M was 22 years old and had been born with a congenital abnormality of the brain called holoprosencephaly. This caused considerable loss of brain substance resulting in cerebral palsy and severe learning difficulties. He was confined to a wheelchair and had never been able to walk.
M had been hospitalised repeatedly, spending 79 out of 147 weeks in hospital between June 2010 and April 201, with a total of 18 admissions since 2010. It was common ground that his condition has significantly deteriorated since 2010. At the time of the hearing he was seriously malnourished and reaching the end of his life.
M spent most of his life being cared for by his aunt, K, whom Eleanor King J described as “his psychological and real mother, in every sense of the word.” There was no question that M lacked the capacity to make the decisions about his resuscitation, treatment with antibiotics and admission to intensive care.
The Trust sought an urgent decision on the grounds that M was at risk of dying due to severe malnourishment. Eleanor King J considered the detailed evidence about the M’s nutritional state and the impact it had on his prognosis. A gastromony tube and peg had been inserted in 2007 and there was a concern that maximum feeding through the tube would increase M’s risk of aspiration pneumonia and may not result in an improvement in his nutritional status. The parties agreed that M’s calories would be reduced and the flow slowed down, on the understanding that in the event that this resulted in pneumonia, this would not be treated with antibiotics.
Eleanor King J summarised the law on the provision of medical treatment in such cases, citing In Re M (Adult Patient, Minimally Conscious State: Withdrawal of Treatment)  1 WLR 1653 and AVS v NHS Foundation Trust  EWCA Civ 7. Eleanor King J also set out the following extracts from the judgment of Sir Alan Ward in Aintree University Hospitals NHS Foundation Trust v David James and Others  EWCA Civ 65 at paragraphs 44 and 45:
“As I indicated in my discussion on the meaning of 'futility', what the guidance is concerned with is answering the question: how should someone's best interests be worked out when making decisions about life sustaining treatment? As is stated at 530 of the Code of Practice, it is up to the doctor or healthcare professional providing treatment to assess whether the treatment is life-sustaining in each particular situation. In other words, the focus is on the medical interests of the patient when treatment is being considered to sustain life. That is not to say the doctors determine the outcome, for it is the court that must decide where there is a dispute about it, and the court will always scrutinise the medical evidence with scrupulous care."
“The fact that I have concluded that treatment would be futile, overly burdensome and that there is no prospect of recovery is but one pointer to where the best interests of where DJ lie. Not to treat him may be in his best medical interests, but the question remains whether it is in his best interests overall, and here I have to accept that the term 'best interests' encompasses medical, emotional and all other welfare issues: see Wall LJ in Portsmouth Hospitals NHS Trust v Wyatt  EWCA Civ 1181 at  following Re A  1 FLR 549.
It may not be possible to attempt to define what is in the best interests of a patient by a single test applicable in all circumstances: see Lord Phillips of Worth Maltravers MR in Birk's case at , but some help is given by the Mental Capacity Act itself. The court must, pursuant to section 4(6), consider so far as is reasonably ascertainable the person's past and present wishes and feelings, his beliefs and values, and the other factors he would be likely to consider if he was able to do so. The court must take into account the views of those caring for DJ as to what would be in his best interests, and particularly what they consider to be his real wishes and feelings."
Eleanor King J went on to apply those words to the facts of the present case. She made a declaration that M should not be resuscitated, on the basis that it would provide no therapeutic benefit, taking into account the likelihood of painful rib fractures, further loss of cognitive function, and the inevitability that a successful resuscitation would lead to mechanical ventilation. K agreed with this declaration but argued that M should receive intensive care treatment and should be “given a chance.” Eleanor King J did not accept this, stating:
“… I am satisfied that there is no therapeutic benefit to M to be ventilated in such circumstances. Such treatment would offer him no prospect of a cure and, far from palliate his life threatening condition, would subject him to unnecessary discomfort and indignity.
I accept the evidence that it is highly unlikely that M could thereafter be weaned off a ventilator, and that he would therefore face the prospect of going through the trauma of ventilation only to be withdrawn from then to allow conservative palliative care when the attempts to wean him off the ventilator inevitably failed. I conclude, therefore, that intensive care treatment would be futile by whatever definition, and, that, taking into account all the circumstances, including the wishes of Ms K and her perception of M's wishes were he able to communicate them to the outside world, it would not be in his best interests for such intensive care treatment to be undertaken.“
The parties were in agreement that the only circumstances in which it would be in M’s best interests to receive intensive care treatment would be where he had an immediately reversible condition, such as nosebleed or peg adjustment. Eleanor King J accordingly made the declarations sought by the NHS Trust.
The judgment of Sir Alan Ward in the Aintree case, and in particular his analysis of the meaning of the word ‘futility,’ was the subject of detailed scrutiny before the Supreme Court before the summer recess. We await the hand down of the Supreme Court’s decision, but in the interim note that tragic cases such as M’s make clear why it is so important that there is clarity for both clinicians and family members (not to mention the judiciary) as to precisely what approach is to be taken to the determination of best interests in extremis. It is also of note for the very clear and detailed picture given of the realities of treatment in an intensive care ward, where intensive care can frequently be far from a ‘benign’ treatment; it being necessary to take a decision against the backdrop of the “harsh, even brutal, reality of what mechanical ventilation treatment in an Intensive Care Unit means.”