The Court of Protection has, for the first time, authorised the withdrawal of artificial nutrition and hydration (ANH) from a patient in a minimally conscious state (MCS). Previously, the withdrawal of ANH has only been sanctioned for patients in a permanent vegetative state (PVS), who have no conscious awareness whatsoever. However, in this ground-breaking case, the Court authorised the withdrawal of life-sustaining treatment out of respect for the patient’s dignity and human freedom, which overwhelmed the presumption that there should be any further prolongation of her life.
The case of Re Mrs N  EWCOP 76 concerned a 68-year-old woman (Mrs N), who was profoundly impaired both physically and cognitively as a result of the progressive degenerative impact of multiple sclerosis (MS). She was diagnosed with the condition in 1991. Sadly Mrs N deteriorated over the following years and by January 2015 she had no ability to communicate or mobilise, was incapable of making any decisions about her life and was being given ANH through a percutaneous gastrostomy (PEG) tube. Mrs N’s daughter (M), who was distressed by her mother’s condition, considered that she had no quality of life whatsoever. Therefore in April 2015, M applied to the Court of Protection for a decision as to whether it was in Mrs N’s best interests to continue to receive ANH.
The Court stated that, in deciding this issue, the diagnosis of Mrs N’s present disorder of consciousness was key: if Mrs N was in MCS with some awareness then her best interests would have to be considered and weighed up. If she was in PVS then, being absent of all awareness, she would have no interests to balance in respect of treatment and it would follow that ANH should be withdrawn. The Court heard evidence from three expert practitioners, two of whom considered that Mrs N was in MCS because she could ‘fix’ and ‘track’ objects within her line of vision. The judge agreed with this view and so Mrs N’s best interests needed to be determined.
The judge emphasised that Mrs N herself must lie at the very heart of the decision-making process and that her wishes and feelings, as far as they were ascertainable, must be afforded great respect. Mrs N’s family gave detailed evidence about how Mrs N was prior to her diagnosis. They advised the Court that upon being informed of her diagnosis, Mrs N became profoundly depressed and repeatedly told her son that she would ‘rather be dead’.
Having heard the evidence of Mrs N’s family, the judge was entirely satisfied that Mrs N would have found her present circumstances to be profoundly humiliating and that she would not wish to continue in her current state. He made it clear that this was not a case concerned with Mrs N’s right to die, but rather her right to live her life at the end of her days as she would have wished. Accordingly, he ordered that it was in Mrs N’s best interests for the life-sustaining ANH to be withdrawn.