Transcript Best Interests & the Sanctity of Life after W v M and

Dr Alex Mullock
[email protected]
Autonomy v Sanctity of Life
 The case of W v M and Others [2011] EWHC 2443
(Fam)
 The legal position - Mental Capacity Act 2005
 The ethical perspective
 Striking an appropriate balance between respecting
autonomy and respecting life
M’s story:
 February 2003 – M, an active 43-year-old woman, was
struck down by viral encephalitis, suffering terrible
brain damage.
 Once M’s condition had settled, it was believed that
she was in a vegetative state (VS).
 After several years M’s family applied to court to have
ANH withdrawn.
 Diagnostic tests (SMART) confirmed M was minimally
conscious rather than vegetative.
The Law – Best interests
 Airedale NHS Trust v Bland [1993] 1 All ER 821.
 “In VS cases, the balance falls in one direction every
time – in favour of withdrawal” (Baker J in Re M)
 Not strictly true - Ahsan v University Hospitals Leicester
NHS Trust [2007] PIQR P19 - But the decision is
generally not contentious provided everyone agrees.
 So people in VS might be seen to have a right to die
subject to the Bland safeguards.
Diagnosing the vegetative state
 Determining whether a person is in VS or minimally
conscious has been difficult, e.g. Frenchay v S [1994] 2
All ER 403.
 The fate of those not in VS is determined by a very
careful application of the best interests test, with
evidence of consciousness being legally (and morally)
significant.
Section 4 Mental Capacity Act
(1)In determining for the purposes of this Act what is in a person’s best
interests, the person making the determination must not make it
merely on the basis of –
(a)the person’s age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might
lead others to make unjustified assumptions about what might
be in his best interests.
(5) Where the determination relates to life-sustaining
treatment he must not, in considering whether the
treatment is in best interests of the person concerned, be
motivated by a desire to bring about his death.
Section 4 MCA continued:
(6)He must consider, so far as is reasonably
ascertainable –
The person’s past and present wishes and
feelings (and, in particular, any relevant written
statement made by him when he had capacity),
ALSO:
The beliefs and values that would be likely to influence his
decision if he had capacity, and other factors that he
would be likely to consider if he were able to do so.
Section 4 MCA continued:
(7)He must take into account, if it is practicable
and appropriate to consult them, the
views of –
(a)anyone named by the person as someone to be
consulted on the matter in question or on matters
of that kind,
(b)anyone engaged in caring for the person or
interested in his welfare,
MCA Code of Practice:
 In setting out the requirements for working out a
person’s ‘best interests’, section 4 of the Act puts the
person who lacks capacity at the centre of the
decision to be made... their wishes and feelings,
beliefs and values should be taken fully into account
– whether expressed in the past or now.
 But their wishes and feelings, beliefs and values
will not necessarily be the deciding factor in
working out their best interests.
Balancing M’s interests
 The good aspects of M’s life balanced against the bad
aspects.
 Pain/suffering v Pleasure/contentment
 ALSO, what would M want?
 What do her family and carers think?
Life in the balance
Positive things:
 Some contentment/
possible pleasure
 Clinically stable – could
live for years
 Withdrawing ANH
would cause M to suffer
 Respecting the sanctity
of life? (and avoiding
authorising killing?)
Negative things:
 Some pain, distress and
suffering
 The former M would not
want to be kept alive in
this condition
 M’s condition is
distressing to her family
The Court’s decision:
 Baker J was not prepared to accept that M’s
“experiences are wholly, or even on balance negative”
 Thus, irrespective of the evidence relating to M’s past
wishes and feelings, the sanctity of life should be
prioritised.
 BUT, M should be subject to a ‘Do Not Resuscitate’
order, and;
 If infection occurs, the decision to treat should be left
to doctors in consultation with M’s family.
The ‘window of opportunity’ for
allowing death?
 Kitzinger & Kitzinger:
 The level of intervention is crucial to the decision.
 Should the decision rest on the means of achieving
death?
 Heywood:
 ‘This feeds into a much wider debate about why the
law should condone certain passive inactions, but fail
to sanction any positive steps to hasten a patient’s
death and put an end to their pain and suffering’
Is something necessarily better
than nothing?
 Ashwal & Cranford, Savulescu & Wilkinson:
 Being in MCS is worse than being in PVS because the
person can experience pain and some awareness of
their predicament.
BUT
 Mason & Laurie:
 Allowing negative treatment decisions to lead to the
death of vulnerable people is ‘euthanasia by any other
name’.
M’s past wishes?
 How should evidence falling short of a legally binding
Advance Decision be treated?
 Donnelly:
 ‘Statements such as ‘I would rather die than be
dependent’ may reflect a desire for reassurance, or may
be a result of temporary depression or fear, and may
not represent the person’s considered views on future
care should they lose capacity’.
But...
 Mason & Laurie:
 ‘...it is surely not in a person’s best interests to have his
or her explicit or implicit preferences ignored.’
Past wishes v present experiences
Dworkin has argued:
 The past competent person should have sovereignty
over the future (present) incompetent person.
 Critical interests should take precedence over
experiential interests.
Past v present wishes
BUT, what if there is little or no connectedness between
the past and present person? (e.g.Dresser, Lewis)
 Does the present person even share the same identity
with the former competent person?
 Is there sufficient ‘psychological continuity’?
(Buchanan)
Present experiential interests?
 Dworkin’s argument seems even weaker if the
incompetent person has positive experiential interests.
 E.g. A person with Alzheimers might be quite happy,
enjoying positive experiences in the present despite
not remembering their former critical interests.
Dworkin continued…
 Sheather:
 How does this apply to people in MCS?
 Does M have psychological continuity with her former
self?
 Does she have sufficiently positive experiential interests
to justify disregarding her past wishes?
Subjective and objective views?
 What do you think?
 Baker J’s objective view of MCS:
 ‘It involves ‘a quality of life that many would find
impossible to accept were they able to consistently
express themselves with full competence’
Getting the balance right...
 When there is conflict between past autonomous
wishes and the need to protect the lives of vulnerable
people, what is the answer?
 If Judges are free to disregard clear evidence of past
wishes in order to prioritise the sanctity of life, section
4 MCA becomes meaningless.
2 Possible Solutions:
 1. Replace ‘best interests’ with ‘substituted judgment’.
 2. Adopt a more robust approach to ensuring the past
wishes , beliefs etc of the incompetent person are
respected.
Substituted Judgment?
 Can we trust the next of kin to make the right
decision?
 Donnelly:
 ‘...it is important to remember that even close friends or
family members cannot always know the past
preferences or the relevant beliefs and values of the
person lacking capacity’
 Will they always make altruistic decisions?
Substituted Judgement?
 What if those closest cannot agree?
 Terri Shiavo’s case
 Re G [1995] 2 FLR 528
 Should people in MCS even be subject to substituted
judgement?
 The Wendland case
A new Code of Practice?
 Existing Code:
 In setting out the requirements for working out a
person’s ‘best interests’, section 4 of the Act puts the
person who lacks capacity at the centre of the
decision to be made... their wishes and feelings,
beliefs and values should be taken fully into account
– whether expressed in the past or now.
 But their wishes and feelings, beliefs and values will
not necessarily be the deciding factor in working out
their best interests.
A suggested amendment:
 ... While their wishes and feelings, beliefs and values
will not necessarily be the deciding factor in working
out their best interests, decision-makers should only
feel free to disregard the evidence regarding past
wishes and values if:
 There is conflicting evidence or concern about the
validity of the evidence regarding past wishes.
 The person is enjoying a good quality of life, with
demonstrably good experiences which clearly
outweigh the negative experiences.
Thank you
Any comments or questions?