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Court of Protection decides man lacking capacity is not to be resuscitated

View profile for Mike Pemberton
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The Court of Protection heard the recent case of An NHS Foundation Trust v M & K [2013] EWHC 2402, in which declarations were sought by the NHS Trust that the man (known throughout as M) should not be given Intensive Care treatment or CPR should there be a further deterioration in his condition, nor should he be given antibiotics in the event of him contracting pneumonia again.

M was born with a congenital abnormality of the brain (HPE). The extents of his disabilities are such that he lacks the capacity to make decisions in relation to his medical treatment. It is noted in the judgment that the oldest HPE patient documented in literature was 19 years old.

Since 2012, M’s condition had significantly deteriorated, and medical experts were of the view that he was reaching the end of his life.

Dr B said that the reality is that M cannot be offered a realistic chance of improvement and survival, and that ventilation is ‘just cruel’. The conclusion of the doctors involved in the case was that ‘it would not reverse the trend, but rather would prolong the inevitable.’

Ms K, M’s mother and carer, agreed to the declaration in relation to CPR, however wished for M to be given ‘every chance’, which includes Intensive Care treatment and antibiotics for pneumonia. The Court was therefore faced with the decision of what would be in M’s best interests.

S1(5) of the Mental Capacity Act 2005 states that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.’

The Judge mentioned the presence of a strong presumption in favour of the preservation of life at law, however did state that this ‘did not displace the patient’s best interests as the paramount consideration.’

Further, The Mental Capacity Act Code of Practice (s42(1)(b)) acknowledges that ‘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.’ It was agreed by all of the medical professionals in this case that treatment would be ‘futile’.

The Court must also, however, take into account the views of ‘anyone engaged in caring for the person or interested in his welfare’ (s4(2) MCA 2005). The Court therefore did consider the wishes of Ms K and her view of M’s wishes that he would wish to receive treatment.

However, in all the circumstances, the Court made the declarations sought. Should M’s condition deteriorate, he will not go back into hospital and receive Intensive Care treatment, nor will he be given antibiotics for pneumonia, or be given CPR should his heart stop.

The case highlights the extremely difficult and sensitive best interests decisions with which the Court of Protection is often faced.

By Sophie Maloney, human rights law & civil liberties