VT and defining best interests at the end of life…

This post is about the judgment reported on the BBC yesterday concerning an application by an NHS Trust regarding their duties to resuscitate or intensively care for a Muslim man, Mr VT, who is currently in a minimally conscious state. The Trust took the view that further invasive treatment would not be in his best interests and the family opposed the application.

My comments are slightly speculative and may be misinformed since the actual judgment has not been reported yet and may not be reported. But the details described touch on a very profound ethical issue which the Mental Capacity Act does not seem to provide adequate conceptual tools to address.

Mr VT has lost the capacity to either formulate or communicate his wishes regarding treatment so any decision made about his treatment must be made in his best interests. But in fact even if Mr VT retained capacity he could not require clinicians to perform treatment that was futile or not indicated by his clinical needs. This position was held in R(Burke) v GMC in the House of Lords in 2005 and in Aintree NHS Trust v James (warning pdf) 2 weeks ago Baroness Hale affirmed that the same position applied when doctors were making decisions under the MCA. Best interests decisions reached under the MCA do not require doctors to order treatment which is not clinically indicated.

At the same time VT has expressed a powerful wish, prior to loss of capacity, that in this situation he would wish to be kept alive for as long as possible to experience suffering which might purify his soul before death. It is no answer to say that his view is not shared by others, since we live in a religiously plural society and VT’s right to have his religious views respected is recognised under Art 9 ECHR.

The real issue here is that the ends VT’s treating team and VT himself wishes to attain are fundamentally at odds. VT sees or saw suffering as a necessary, inevitable and possibly desirable dimension of the end-of-life. His clinical team see it is an undesirable and unnecessary fate for VT to endure.

Both positions are rational desires which deserve respect. This situation is not analogous to the conflict that arises when an individual with a mental disorder wishes to suffer because they have a pathological desire to self-harm.

Collapsing the outcome of this case into a single judgment about what is now in VT’s best interests is problematic, but it is the only outcome the MCA allows and therefore the approach the Hayden J. has taken is probably right. He appears to have accepted the significance of VT’s prior wishes, but also pointed out that they are not determinative of VT’s current best interests, and instead granted a declaration saying that certain forms of intervention are not permitted since the treatment would be futile. A position which is entirely consistent with the decision in James and Burke.

But the structure of this approach seems wrong. It would be more accurate to say that it is in VT’s best interests to suffer as he desired or at least to have his spiritual desires given as full expression as possible, but that he does not have any power to order that anyone assist him in that suffering, especially if their clinical evaluation is that such assistance is futile and distressing. The outcome might be the same on this set of facts, but the reasoning would at least acknowledge the primary significance that should be accorded to VT’s wishes about the end of his life.

As it is we have the rather absurd position in English law that in cases concerning statutory wills past wishes concerning their content, and concerns about family feelings after the person’s death may well be determinative of outcome, even though the individual will be dead and no longer able to enjoy any kind of benefit from the will, whilst in cases concerning end-of-life decision-making past wishes and the feelings of family members may be overridden by clinician views about futility, even though the person is still alive in a minimally conscious state experiencing some, albeit limited, awareness of the consequences of the decision made. The logic of this position would appear to be that the past wishes and feelings of testators matter more than the past wishes and feelings of the dying which makes no sense whatsoever. A more logical construction can only be that the past wishes and feelings of testators and the dying are of equal significance, but the practical power to exercise the wishes of the latter is limited by the facts that the law has no power to control clinician discretion, whilst it has total authority to authorise a statutory will.

I am often rather critical of how the Court of Protection uses evidence from P in reaching a judgment concerning best interests. On this set of facts though it does not seem like the fault lies with the judge who has obviously taken some pains to determine VT’s views and assess their relevance. It is the fact that the statute itself only allows one outcome founded on best interests to be the basis of the declaration made which creates the anomaly

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