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Shift in Mental Capacity law towards a substituted judgment test

19 November 2015

Becky Fitzpatrick of Browne Jacobson acted for the healthcare provider in what represents a potential shift in Mental Capacity case law, the Court of Protection has ruled a patient's likely wishes and those of the family should be taken into account when considering the withdrawal of life-maintaining services. 

The judge ordered that as a matter of fact the patient (referred to as Mrs N) is in a minimally conscious state and that notwithstanding the fact that she has a level of awareness demonstrated by various clinical assessments (tracking & eye movement that is more than fleeting) it is in her best interests for clinically assisted artificial nutrition and hydration to be withdrawn (CANH).

This is on the basis that the law defines CANH as a form of invasive medical treatment. Therefore a “balance sheet” approach has to be taken in assessing the benefits and dis-benefits of such treatment continuing when deciding best interests, and great weight must be given to Mrs N's likely views and wishes. The judge was persuaded in this case by the family evidence that Mrs N. would not want such treatment to continue if she was able to speak for herself. 

This is the first English case where the Court has ruled that it is lawful for clinically assisted artificial nutrition and hydration to be withdrawn from a person in a Minimally Conscious State (that is, where they have some level of awareness).

On the facts of this case, the judge was persuaded by the family evidence that Mrs N. would not want such invasive treatment to continue if she was able to speak for herself. Following on from previous case law, the Judge was required to give great weight to her likely wishes and feelings when coming to a decision.

Given the very serious issues involved, this is a landmark ruling arguably representing a shift in mental capacity law towards a substituted judgment test rather than a straightforward best interests test when deciding these difficult issues.

This is a landmark ruling, as an English court has not previously agreed to such an order.

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