Re M; W v M  EWHC 2443 (COP)
M is in a minimally-conscious state (the three categories of disorders of consciousness being coma, vegetative state and minimally-conscious state); family members applied to court to argue that the withdrawal of artificial nutrition and hydration was in M's best interests. (1) The Official Solicitor's argument that withdrawal can never be in the best interests of a clinically-stable MCS patient was rejected in favour of the usual 'balance sheet' approach to best interests, although clinical stability is an important factor. (2) In analysing best interests, the judge considered (a) preservation of life, (b) M's past wishes and feelings, (c) pain, (d) enjoyment of life, (e) prospects of recovery, (f) dignity, and (g) wishes and feelings of family members and carers. (3) It was not in M's best interests for ANH to be withdrawn: the preservation of life was the decisive factor in this case. (4) The judge made the following observations for future cases: (a) a decision to withhold or withdraw ANH from a person in VS or MCS must be referred to the court; (b) no such application should be made unless the necessary assessments for MCS have been carried out; (c) non-means-tested Legal Aid should be available for family members in such applications; (d) consistent with privacy, it is imperative that the press should be free to report such cases. (5) A radical review of M's care plan will be the subject of further submissions; in the meantime, the do-not-resusitate order was continued and other treatment left to clinical discretion.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MEDICAL PRACTITIONER — Medical treatment — Withdrawal of feeding — Patient in minimally conscious state — Whether in patient’s best interests to withdraw all life sustaining treatment and medical support — Mental Capacity Act 2005, s 4
W v M and others
B;  WLR (D) 283
Court of Protection: Baker J: 28 September 2011
Pursuant to section 4 of the Mental Capacity Act 2005 it was not in the best interests of a patient diagnosed as being in a minimally conscious state to authorise the withdrawal of all life sustaining treatment including nutrition and hydration by artifical means (“ANH”).
Baker J, sitting in the Court of Protection, so held when refusing the application made by W (by her litigation friend B), the mother of the patient M, (by her litigation friend the Official Solicitor) for a declaration that it was in M’s best interests for ANH to be withdrawn. The primary care trust was joined as second respondent to the proceedings. S, M’s partner, was present for part of the hearing but was not represented.
BAKER J said that it was the first occasion in this country in which an application for the withdrawal of ANH had been made in respect of a person in a minimally conscious state. It was accepted that the court had to determine the application by deciding whether the withdrawal of life sustaining treatment, including ANH, was in M’s best interests, by reference to section 4 of the Mental Capacity Act 2005, which set out the steps to be taken to determine what was in a person’s best interests, and the relevant line of authorities, principally Airedale NHS Trust v BlandB. A number of important factors required scrutiny. The first was the right to life, which was of the most profound importance and carried very great weight in any balancing exercise. M was recognisably alive in a way that a patient in a vegetative state was not. The second factor was the patient’s wishes and feelings. Section 4(6) required the court to consider, so far as reasonably ascertainable, M’s past and present wishes and feelings. Even though M had made no formal advance decision as to medical treatment, her family felt strongly that she would have rejected her current treatment and the rationale for the application was fundamentally based on her perceived wishes and feelings. Given the importance of the sanctity of life, and the fatal consequences of withdrawing treatment, and the absence of an advance decision that complied with the requirements previously specified by the common law and now under statute, it would be wrong to attach significant weight to statements made prior to her collapse. His Lordship referred to the evidence concerning M’s suffering of pain, enjoyment of life, prospects of recovery and her dignity and the wishes and feelings of family members and carers. There was no justification for introducing a requirement of clinical instability before embarking on a balance sheet analysis in minimally conscious state cases. Adopting the balance sheet approach proposed by Thorpe LJ in In Re A (Male Sterilisation) M, 560 that process was best expressed in the present case by a comparison of the advantages of withdrawing ANH against the advantages of continuing with the treatment. In his Lordship’s judgment the importance of preserving life was the decisive factor in the present case. It would not be in M’s best interests for ANH to be withdrawn.
His Lordship went on to make observations, which had been approved by the President of the Court of Protection, designed to assist in future applications for the withdrawal of ANH from a person in a vegetative state or minimally conscious state.
Appearances: Vikram Sachdeva and Victoria Butler-Cole (instructed by Irwin Mitchell) for the applicant; Caroline Harry Thomas QC and Katherine Apps (instructed by Official Solicitor) for M; Bridget Dolan (instructed by Beachcroft LLP) for the primary care trust.
Reported by: Celia Fox, Barrister
© 2011. The Incorporated Council of Law Reporting for England and Wales.
Hearing dates: 18th to 22nd and 25th to 29th July and 1st August 2011
Before: Baker J
Vikram Sachdeva and Victoria Butler-Cole (instructed by Irwin Mitchell) for the Applicant
Caroline Harry Thomas QC and Katherine Apps (instructed by the Official Solicitor) for M
Bridget Dolan (instructed by Beachcroft LLP) for the Primary Care Trust
S was present for part of the hearing but not represented
B,  WLR (D) 283,  All ER (D) 142 (Sep)
Press articles, pre-judgment:
- Daily Telegraph, 'High Court judge gives brain-damaged sister right to die' (20/7/11) (inaccurate headline)
- Andy McSmith, 'Man pleads with court for right to end his partner's life' (Independent, 20/7/11)
- Press Association, 'Family legal bid to let patient die' (19/7/11)
- Martin Beckford, 'Mother seeks to let daughter with brain damage die' (Daily Telegraph, 15/4/11). This article relates to a preliminary Court of Protection hearing on 14/4/11 before Baker J, involving a patient M who is in a minimally conscious state (rather than a persistent vegetative state): M's mother wants artificial nutrition and hydration to be removed, whereas the Official Solicitor argues that it is M's best interests to be kept alive.
- Press Association, 'Brain-damaged woman shows "smile" (20/7/11)
- Press Association, 'Judge imposes Twitter court ban' (13/5/11)
- Celia Kitzinger and Jenny Kitzinger, '“M,” Polly, and the Right to Die' (Bioethics Forum, 12/10/11)
Press articles, post-judgment:
- Daniel Sokol, 'What is a life worth living? Further analysis of "M"' (UK Human Rights Blog, 30/9/11)
- Rosalind English, 'No right to die without a "Living will"' (UK Human Rights Blog, 30/9/11) - 'The message underlying this ruling is clear: if you want to avoid the risk of spending years of your life subject to aggressive medical intervention whilst imprisoned in a cage of bare-consciousness, make a living will.'
- UKPA, 'Brain-damage woman ruling challenge' (26/10/11). Applicant seeks leave to appeal to Court of Appeal.