Report No. 196

(21) Ms. B vs. An NHS Hospital Trust: 2002 EWHC 429. (Dame Elizabeth Butler Sloss (President of the Family Court) (d. 22.3.2002)

Ms B, born in 1956, was a post-graduate and she was a teacher in Social Work, and had a Management Diploma. On 26.8.99, she suffered haemorrhage of the spinal column in her neck. Cavernoma was diagnosed, being a malformation of blood vessels in the spinal cord. She executed a living will on 4.9.99, which instructed that if she suffered from life threatening condition or permanent mental impairment, the treatment be withdrawn. She recovered from treatment, worked in her job, but in 2001, she suffered weakness.

She suffered cervical spine cavernoma as a result of which she became tetraplegic, suffered complete paralysis from neck down. She was put in ICU on 16.2.2001. She had to be put on ventilator. She recovered and again her health failed, put in ICU on 28.3.2001, but this time she asked that the ventilator be withdrawn. Psychiatrists were divided in their view of her capacity. She recovered and made a further living will on 15.8.2001 and refused treatment till November. She moved the Court for declaration that the treatment was invasive and was a trespass.

Butler-Sloss J referred to the principle of 'autonomy'. That principle accepts the capacity of a person of full age to consent or not to consent to medical treatment. It was laid down by Lord Reid in S vs. McC: W vs W: 1972(AC) 25 (43 and by Lord Goff in Re F (Mental Patient: Sterilisation) 1990(2) AC 1 and by Lord Donaldson in re T. 1992(4) All ER 649.

She referred to the observations of Robins JA in Malette vs. Shulman 67 DLR (4th ) 321 (336), Re MB (Medical Treatment) 1997(2) FLR 426 and stated that the approach is identical with the jurisprudence in other parts of the world. In Cruzan vs Director (1990) 497 US 261, the US Supreme Court stated "No right is held more sacred, or is more carefully guarded than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law".

The principle of sanctity of life (i.e. protecting or prolonging life) is also accepted to be not absolute but that it is still a concern of the State, including the judiciary. At the same time, no medical officer can be compelled to treat a patient against his wishes, even if death is imminent. This principle of sanctity of life was explained by Lord Keith in Airedale 1993 AC 789 (859) and Lord Goff (p 864). See also Nancy B vs. Hote.- Dieu de Quebec: (1992) 86 DLR (4th) 385) where in a case before the Quebec Supreme Court, a 25 year old woman with an incurable neurological disorder refused ventilation and the Court accepted her prayer to stop ventilation.

As to mental capacity, there is a presumption that every person possesses mental capacity to decide about medical treatment but this can be rebutted (Re MB: 1997(2) FLR 426 (436). Assessing capacity is a difficult exercise. As stated by Justice Steffen in McKay vs. Bugstedt (1990) 801 P. ed 617 (Nev Sup ct) 2(at p 5), in regard to Kenneth who was 31 years and tetraplegic from the age of 10:

"One of the verities of human experience is that all life will eventually end in death. As the seasons of life progress through spring, summer and fall, to the winter of our years, the expression unknown to youth is often heard evincing the wish to one might pass away in the midst of a peaceful sleep. It would appear, however, that as the scientific community continues to increase human longevity and promote 'the greying of America', prospects for slipping away during peaceful slumber are decreasing. And for significant number of citizens, like Kenneth, misfortune may rob life of much of its quality long before the onset of winter."

In that case Kenneth pleaded for his release from a life of paralysis held intact by the 'life sustaining properties of a respirator'.

Judge Dame Butler-Sloss then quoted from Bartling vs. Superior Court of Los Angeles Country (1984) 163 Cal App(3d) 186, where it was held that the patient's previous ambivalence about withdrawal of treatment was not relevant to the assessment of his capacity:

"The fact that (a patient) periodically wavered from this posture (i.e preferring death to his intolerable life on the ventilator) because of severe depression or for any other reason, does not justify the conclusion of (the hospital) and his treating physicians that his capacity to make such a decision was impaired to the point of legal incapacity. (Lane vs. Candura: (1997) NE (2d), 1232, 1234)."

She also referred to a similar ambivalence in the case before her, the medical evidence of number of doctors, and concluded that Ms B was competent to make all relevant decisions about her treatment including the decision about withdrawal of artificial ventilation and granted her prayer for withdrawal, after distinguishing St Geroge's Health Care NHS Trust Vs J (1999) Fam 20(63). She gave 10 guidelines on mental capacity:

"Guidance has already been given by the Court of Appeal in St. George's Healthcare NHS Trust V. S (1999) Fam 26 at page 63 in the Guidelines at page 758 et seq. The circumstances of the present case are however very different from the facts of that case. It might therefore be helpful if I restate some basic principles and offer additional guidelines in case a situation similar to the present should arise again.

(i) There is a presumption that a patient has the mental capacity to make decisions whether to consent to or refuse medical or surgical treatment offered to him/her.

(ii) If mental capacity is not in issue and the patient, having been given the relevant information and offered the available options, chooses to refuse the treatment, that decision has to be respected by the doctors. Considerations that the best interests of the patient would indicate that the decision should be to consent to treatment are irrelevant.

(iii) If there is concern or doubt about the mental capacity of the patient, that doubt should be resolved as soon as possible, by doctors within the hospital or NHS Trust or by other normal medical procedures.

(iv) In the meantime, while the question of capacity is being resolved, the patient must, of course, be cared for in accordance with the judgment of the doctors as to the patient's best interests.

(v) If there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences.

The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision.

(vi) In the rare case where disagreement still exists about competence, it is of the utmost importance that the patient is fully informed of the steps being taken and made a part of the process. If the option of enlisting independent outside expertise is being considered, the doctor should discuss this with the patient so that any referral to a doctor outside the hospital would be, if possible, on a joint basis with the aim of helping both sides to resolve the disagreement. It may be crucial to the prospects of a good outcome that the patient is involved before the referral is made and feels equally engaged in the process.

(vii) If the hospital is faced with a dilemma which the doctors do not know how to resolve, it must be recognized and further steps taken as a matter of priority. Those in charge must not allow a situation of deadlock or drift to occur.

(viii) If there is no disagreement about competence but the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so.

(ix) If all appropriate steps to seek independent assistance from medical experts outside the hospital have failed, the NHS Hospital Trust should not hesitate to make an application to the High Court or seek the advice of the Official Solicitor.

(x) The treating clinicians and the hospital should always have in mind that a seriously physically disabled patient who is mentally competent has the same right to personal autonomy and to make decisions as any other person with mental capacity.

All those reading this judgment must be careful to recognize the importance of complying with the publicity injunction set out at the beginning of this judgment."

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