Intended for healthcare professionals


Police officer in minimally conscious state should be allowed to die, says judge

BMJ 2016; 355 doi: (Published 22 December 2016) Cite this as: BMJ 2016;355:i6829

Re: Police officer in minimally conscious state should be allowed to die, says judge

I only downloaded the full court ruling yesterday, and I have not yet read it through (which I will be doing - unlike Clare Dyer's article, which I cannot read because it is subscription): but I was very interested, when I scanned part of the ruling, to come across 62 ii. Mr Justice Charles was writing about the interaction of the MCA's section 4(5) [the 'you must not be motivated by a desire to end the person's life' caveat] with section 4(6), which tells a decision-maker what to consider. I decided some year ago, that the only obvious way around this - the only obvious justification for a best-interests decision which would lead to the patient's death in situations of much-reduced consciousness, if the patient could be kept alive - was to be satisfied that the patient would not have wanted to live. I presented my position in a PDF file which can be downloaded from ref 1, and my wording was:

'The next layer of decision making (see footnote), is when the patient has not told you his decision, or he is unable to tell you and he had not left a written ADRT for you to read: in this situation any person making a decision should try to comply with section 4 of the MCA. First you must attempt to retain the individuality of the patient - you must attempt to discover, to an acceptable degree of certainty (as opposed to the 'knowing the decision' of the above two), the decision the individual patient would have made, had he been able to make the decision himself.'

Mr Justice Charles wrote in 62 ii:

'62 But, in my view when the magnetic factors engage the fundamental and intensely personal competing principles of the sanctity of life and of self-determination which an individual with capacity can lawfully resolve and determine by giving or refusing consent to available treatment regimes:

ii) if the decision that P would have made, and so their wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life.'

I also wrote in that downloadable PDF:

'A genuine section 4 best interests decision, involves ‘working out the patient’s likely wishes’ - there must be some degree of uncertainty about those wishes (a degree of uncertainty entirely absent for 1). Whoever is considering the best interests test, the fundamental struggle is in persuading oneself that this uncertainty is small enough, to believe that the patient would have refused CPR for the particular CPA in question.'

I also noticed, that Mr Justice Charles has pointed at a case of Mr Justice Hayden's: I collated some court cases which shed light on the MCA in one of my pieces (ref 2) and I pointed at the same piece by Mr Justice Hayden, with the introductory comment 'There is an even more interesting piece by Mr Justice Hayden, which is not apparently widely read - and it should be widely read, because it makes some fundamental points.'

Footnote: the first two layers of my description of decision-making, were when a mentally-capable patient tells you his decision face-to-face (top layer), and when the incapacitous patient has left a valid and applicable Advance Decision (next-to-top layer).

Ref 1

Ref 2

Competing interests: No competing interests

23 December 2016
Michael H Stone
Retired Non Clinical
None Private Individual
Coventry CV2 4HN