Legal Update – Court of Protection: best interests & the withdrawal of life sustaining treatment

Briggs v Briggs (by his litigation friend, the Official Solicitor) & Others (2) [2016] EWCOP 53

The Facts

As a consequence of an RTA on 3 July 2015 (17 months prior to the court hearing) Paul Briggs suffered a catastrophic brain injury which left him in a minimally conscious. Consequently he lacked capacity to make decisions about his treatment and care and was unable to communicate his wishes and feelings. He was being kept alive in hospital by clinically assisted nutrition and hydration (CANH). His treating medical team were of the opinion that Mr Briggs should be transferred to a rehabilitation unit where his progress could be monitored and promoted. His wife and family disagreed. Their wish was that CANH be withdrawn and he be transferred to a hospice where he could die peacefully.

Court of Protection proceedings were brought by Mr Briggs’ wife (rather than the NHS Trust or CCG). Although (for reasons of legal funding) the application was framed as a challenge to the DoLS authorisation, in reality the wife was seeking a determination from the court on whether it was in her husband’s best interests for CANH to be withdrawn and for him to be transferred to a hospice to die.

Mr Briggs had not made a Mental Capacity Act (MCA) compliant advance decision to refuse life-sustaining treatment. Nor had he appointed an attorney to make healthcare decisions on his behalf under a lasting power of attorney (LPA). In fact there was no evidence he had ever specifically addressed what treatment he would have wanted were he to find himself in a minimally conscious state.

Mr Briggs was described by his family and a work colleague in evidence as a devoted husband and father who was a popular, outgoing, and active outdoor person. He had served in the army and the police force where he had witnessed, at first hand, death and the consequences of serious accidents.  In conversations with family and friends he had commented that he would not want to be kept alive on a life support machine as he did not consider that to be a ‘life worth living’. The family were united in their view that being kept alive by CANH while in a minimally conscious state was not something that Mr Briggs would have wanted or chosen had he been able to do so. They argued that it was in his best interests for the life-sustaining CANH to be withdrawn to enable him to die.

In evidence Mr Briggs’ treating clinicians recommended that he be moved to a specialist rehabilitation unit where, after six months, it would be possible to give a better informed diagnosis and prognosis. It was accepted, however, that even on a best case scenario, he would in the long term remain severely physically impaired and dependent on others for all aspects of his physical care. The Official Solicitor representing Mr Briggs was supportive of the clinicians’ stance.

The Judgment

Mr Justice Charles held:

• In determining whether it is in a patient’s best interests for life sustaining treatment to be continued, the default position and starting point is ‘the very strong presumption in favour of preserving life’ where that life has value, although this presumption is not absolute. (Aintree University Hospitals NHS Trust v James [2013] UKSC 67)
• This presumption must be balanced against the conflicting principle of autonomy and the right to self-determination which enables a person (who has capacity to do so) to refuse life-sustaining treatment and so, as a consequence, bring about their own death.
• Charles J acknowledged that Mr Briggs’ life had value despite being in a minimally conscious state. His life could not be described as ‘futile’ or ‘of no benefit’ (as it would have been considered had he been in a permanent vegetative state – Airedale NHS Trust v Bland [1993] AC 789).
• In determining whether it was in Mr Briggs’ best interests for his life to be prolonged by CANH, the MCA best interests test must be applied in a ‘holistic way’ thus  enabling the court to do for the patient what he would have done for himself if he’d had capacity to do so.  (Aintree)
• The best interests test set out in MCA s.4(6) requires the court to consider, as far as is reasonably ascertainable,  the patient’s ‘past and present wishes and feelings’, ‘the beliefs and values that would be likely to influence his decision’ and ‘any other factors that he would be likely to consider if he were able to do so.’
• The patient must be at the centre of the decision making process – the question to be asked when determining best interests is what this particular patient would have wanted – ‘the decision maker and so the judge must be wary of giving weight to what he thinks is prudent or what he would want for himself or his family, or what he thinks most people would or should want.’
• Nevertheless, a conclusion as to what a patient would have wanted is not necessarily determinative of his best interests – this must be weighed up and balanced against all other relevant and competing factors. (Aintree)
• The weight to be attached to a patient’s ascertainable wishes is fact sensitive, but if the decision the patient would have made ‘can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life’ thus entitling the court to conclude that it is not in the patient’s best interests for life sustaining treatment to be continued
• Charles J accepted the evidence of the family that Mr Briggs would not have wanted to be kept alive by CANH – ‘his family and those who know him best gave evidence with courage, dignity and at considerable emotional cost to themselves, that has convinced me of what Mr Briggs would have wanted and would have decided was in his best interests if he had been sitting in my chair during the hearing.’
• The court therefore concluded that it was in Mr Briggs best interests for CANH to be withdrawn ‘this means that the court is doing on behalf of Mr Briggs what he would have wanted and done for himself in what he thought was his own best interests if he was able to do so.’
• Although the inevitable consequence of the court’s decision was that Mr Briggs would die following withdrawal of CANH, Charles J made clear that this was not a best interests decision as to whether Mr Briggs should live or die rather it was a best interests decision as to whether life-sustaining treatment should be continued. As such MCA s.4(5) – which states that a determination of best interests concerning the withdrawal of life-sustaining treatment must not be motivated by a desire to bring about the person’s death – did not preclude the court from making an order for the withdrawal of CANH.

Comment

• It is not uncommon for people to comment in passing that they would not want this or that medical treatment in given circumstances. It is, however, less common for those wishes to be formalised by means of an advance decision (in accordance with the provisions of MCA s.24-26). All parties in this case acknowledged that had Mr Briggs, prior to losing capacity, made a valid advance decision refusing consent to the identified treatment in the identified circumstances then this would have been decisive and a best interests decision would not have been required. This accords with the fundamental principle of self-determination. Likewise, had Mr Briggs appointed an attorney under a valid LPA to make medical treatment decision on his behalf (including decisions to refuse life sustaining treatment),  such decisions would have been binding providing they were made in the donor’s best interests.
• The judgment makes clear that, even in the absence a valid and applicable advance decision or LPA, the past wishes expressed and decisions made by a person (prior to losing capacity) concerning refusal of life-sustaining treatment are capable of prevailing over the very strong presumption in favour of preserving life – providing they can be ascertained with sufficient certainty.

N.B. Mr Briggs died in a hospice on 22 January 2017.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.