“[22] …the focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it… [35] The authorities are all agreed that the starting point is a strong presumption that it is in a person's best interests to stay alive...Nevertheless, they are also all agreed that this is not an absolute. There are cases where it will not be in a patient's best interests to receive life-sustaining treatment. [36] The courts have been most reluctant to lay down general principles which might guide the decision. Every patient, and every case, is different and must be decided on its own facts. As Hedley J wisely put it at first instance in Portsmouth Hospitals NHS Trust v Wyatt[2005] 1 FLR 21 , "The infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests" (para 23)… “[39] …in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.”
“That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament… But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”
“5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment… 5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests… 5.38. In setting out the requirements for working out a person’s ‘best interests’, section 4 of MCA 2005 puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, 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 ... 5.41 The person may have held strong views in the past which could have a bearing on the decision now to be made. All reasonable efforts must be made to find out whether the person has expressed views in the past that will shape the decision to be made. This could have been through verbal communication, writing, behaviour or habits, or recorded in any other way (for example, home videos or audiotapes).”
“[28]…where the wishes, views and feelings of P can be ascertained with reasonable confidence, they are always to be afforded great respect. That said, they will rarely, if ever, be determinative of P's 'best interests'. Respecting individual autonomy does not always require P's wishes to be afforded predominant weight. Sometimes it will be right to do so, sometimes it will not. The factors that fall to be considered in this intensely complex process are infinitely variable e.g. the nature of the contemplated treatment, how intrusive such treatment might be and crucially what the outcome of that treatment maybe for the individual patient. Into that complex matrix the appropriate weight to be given to P's wishes will vary. What must be stressed is the obligation imposed by statute to inquire into these matters and for the decision maker fully to consider them. Finally, I would observe that an assessment of P's wishes, views and attitudes are not to be confined within the narrow parameters of what P may have said. Strong feelings are often expressed non-verbally, sometimes in contradistinction to what is actually said. Evaluating the wider canvass may involve deriving an understanding of P's views from what he may have done in the past in circumstances which may cast light on the strength of his views on the contemplated treatment… recent case law… has emphasised the importance of giving proper weight to P's wishes, feelings, beliefs and values… The Code of Practice [29] Section 42 MCA requires the Lord Chancellor to prepare a Code of Practice. Every decision maker, including the court, has a statutory duty to "have regard" to the Code of Practice: see section 42(5) MCA. Paragraph 5.31 of the Code is of particular relevance… [30] It is clear, therefore, that the framework of the Act and the scheme of the Code of Practice place great emphasis on the importance of personal autonomy and the obligation to be alert to direct or indirect discrimination against those who lack capacity. Decisions taken in the 'best interests' of an incapacitous individual must factor in the recognition that respect for an individual's past and present (where relevant) wishes and identifiable codes and beliefs by which he has lived are a crucial part of promoting best interests. To subvert these to a substitution of an objective evaluation i.e. to superimpose what the Court thinks best, may result in indirect discrimination. The central objective is to avoid a paternalistic approach and to ensure that the incapacitous achieve equality with the capacitous.”
“235. Able-bodied people frequently feel (even if they do not say so) that disability invariably restricts the enjoyment of life. With the growth in understanding about disability in recent years, however, has come an awareness that people with disability often experience profound enjoyment of life, within the limitations that their disability may impose…On one view, the pleasures of life in such circumstances may appear smaller, but that does not mean they can be disregarded. I do not accept the submission that the absence of pain or discomfort is not in itself a positive feature of life. Comfort and contentment can be, in my view, profoundly positive sensations… 236. The contrast may be more stark where a previously healthy and active person such as M is laid low by illness and becomes severely disabled. Because M is no longer able to enjoy life in the way that she was, it is wholly understandable that members of the family think that she does not enjoy life at all. Having considered the evidence of the carers, however, I find that M does enjoy some aspects of her life. I do not accept that her experiences are wholly, or even on balance, negative.… 237. In short, I do not find that her current life is overwhelmingly negative, or "overly burdensome" in the words of paragraph 5.31 of the Code of Practice, or that there is no prospect of any improvement in the quality and enjoyment of her life.”
“241. Anyone would wish the end of life to be as dignified as possible. In my judgment, however, there is dignity in the life of a disabled person who is being well cared for and being kept as comfortable and as free from pain as possible, and being provided with the maximum opportunity to extend their enjoyment of life that their disability allows.”
“Even with medication and high quality care, there is a significant risk that the process of dying by starvation and dehydration will cause her pain and distress”
“We have no convincing evidence that an unconscious person cannot experience pain. We have plausible, if not compelling, reasons for thinking that, at some fundamental level, they might experience pain. A person, not a brain, feels pain, and the absence of the brain networks or their activation cannot prove the absence of pain. Although they may not remember past pain or anticipate future pain, this does not reduce the suffering at the time. This conclusion has three crucial consequences when managing anyone with a prolonged disorder of consciousness: • We should continue the policy of treating people who exhibit pain behaviours in ways to minimise and control pain, for example, giving prophylactic analgesia or anaesthesia and analgesics when pain is apparent, • We should manage people in ways that minimise the likelihood of pain, • When considering what is in a person’s best interest, the likelihood that they have experienced and will continue to experience some pain should be a relevant, probably vital factor.”
“Before PC suffered the cardiac arrest, she was looking forward to starting university to do a biomedical science course she had applied for after [working] for over 5 years. PC was an caring individual who would go above and beyond for her family and friends. Her hobbies were drawing picture, going to the gym, listening to music and spending time with her siblings and nephew…if PC could see herself now she would not want to be in the situation she is in at such a young age, As we know there is nothing we can do to take away her pain in such a difficult time. She was always caring and considerate and a healthy person and would not want to carry on like this.”