Withdrawing and withholding artificial nutrition and hydration from a patient in a minimally conscious state (Re: M)

In the summer of 2011 the Court of Protection ruled that it would be unlawful to withdraw artificial nutrition and hydration (ANH) from a woman, M, who had been in a minimally conscious state (MCS) for 8 years after contracting viral encephalitis at the age of 43 years.1 It was reported as the first English legal case concerning the withdrawal of ANH from a patient in a MCS. Although the judge sought to limit the judgement as closely as possible to the facts of the case, it is likely to have a significant impact on treatment decisions in relation to life-sustaining treatment for people in states of low awareness.

Under the Mental Capacity Act 2005, decisions made on behalf of adults lacking capacity in England and Wales need to be made on the basis of an assessment of their best interests. The only exception to this is when there is a valid and applicable advance directive refusing the treatment in question. As M had made no advance directive, it fell to the court to make the decision in her best interests. Quoting case law, the court held that, with the exception of patients in a persistent vegetative state, decisions of this kind must be made by adopting a ‘balance sheet’ approach, comparing ‘the advantages of withdrawing ANH against the advantages of continuing with the treatment’ (para 246).1

The judgement draws heavily on the case of Bland.2 Anthony Bland had severe brain damage after being crushed during the Hillsborough Stadium disaster in 1989 and was subsequently in a persistent vegetative state from which there was no hope of recovery. The court extracted the following principles from Bland:

• The principle of sanctity of life is fundamental.

• That principle is not absolute and may yield in certain circumstances.

• A decision …