Thursday 29 September 2011

M case decision welcome but judgment contains future threats to disabled people

SPUC Pro-Life has published a summary and in-depth commentary (below) on yesterday's decision in the M case. Mr Justice Baker, sitting in the Court of Protection, refused an application for withdrawal of assisted food and fluids from a woman diagnosed in a so-called 'minimally conscious state'. Yesterday afternoon Paul Tully, SPUC Pro-Life's general secretary, debated the M case with Dr Evan Harris on Sky News, and has written the summary and commentary below.

M case judgment, Court of Protection, 28 September 2011: decision welcome but judgment contains future threats to disabled people


On the positive side:
  • Ms M has been spared the slow and degrading process of death by dehydration/starvation;
  • The judge gave great weight to the evidence of the healthcare staff involved in Ms M’s day-to-day care – more so than expert medical witnesses, and more so than the evidence of her sister who visits her only briefly and occasionally.
On the negative side:
  • The judgment has extended the scope for the courts to dictate that other patients in a similar condition can be killed
  • This case will pave the way for future Court of Protection cases – which may be shrouded in secrecy – which may sanction death for similar patients
  • The judgment implies that poor quality of life was grounds for killing starving incapacitated patients
  • The judge said that everyone seeking to have similarly disabled relatives killed in this way should get legal aid (but not people who were trying to stop someone being killed)
  • The judgment said that the protection of life for vulnerable people was a “fundamental” principle, but not an “absolute” one – a manoeuvre by which he left scope for decisions to starve/dehydrate others in future.
  • The legal and media attention devoted to this case belies the fact that hundreds, or perhaps thousands of people with conditions like stroke or dementia, are deliberately killed by withdrawing assisted food and water every year in Britain.

We welcome the decision to spare Ms M[i] the horrible slow death by dehydration and starvation that was sought by Irwin Mitchell, the legal firm who, acting at their own expense[ii], asked for her to be killed by this cruel and inhuman process. Irwin Mitchell were acting for Ms M’s mother, Mrs W, who has Alzheimer’s disease, and her sister, Ms B.

Ms M is described as being in a “Minimally Conscious State”, a diagnosis one-step removed from the Non-Responsive State (also called “Vegetative State”).

The judge’s ruling hinged on the Mental Capacity Act 2005 which was designed to enshrine the 1993 Bland case in law. The Bland case defined food and water given by tube as medical treatment, said that some severely disabled people were not worth keeping alive, and argued that when such disabled people died it was really their underlying disability that killed them, not the doctors or relatives who deliberately starved/dehydrated them.[iii]

In his judgment, Mr Baker cites some of the most disturbing passages of the Bland judgment, including Lord Goff’s assertions that “the very poor quality of the life” of  a patient was ground for withholding life-prolonging treatment.[iv]

The Mental Capacity Act added to this by saying that if anyone asked in advance to be starved/dehydrated in this way (by making an advance directive), then they must be left to die in this way if they become incapacitated and rely on tube-feeding.

Ironically, the Mental Capacity Act has helped prevent Ms M from being killed by dehydration and starvation in this instance, as she did not have an advance directive. Ms M can only be killed if the courts regard it as being in her “best interests.” The judge, Mr Justice Baker, has insisted that the letter of the law be observed, and that everything possible to improve Ms M’s condition should be tried before she is starved to death.

However, there are a number of very disturbing aspects about Mr Baker’s judgment:

He said that if Ms M’s condition had been slightly worse, so that she was defined as being in a “vegetative” state[v], he would automatically have agreed to killing her.[vi]

The judge gives considerable attention to evidence from M’s sister, Ms B, even though she does not visit her often or for very long, but calls briefly once every 3-4 weeks and doesn’t talk to her sister.[vii] While Mr Baker says she has shown “devotion” to her sister,  he gives more weight to the evidence of the various healthcare staff in assessing M’s current status.

On the other hand, Mr Baker gives significant weight in his judgment to the evidence of the healthcare staff, such as skills workers, physiotherapists, etc, who work with Ms M, and who said that her overall experience of life is positive. The judge gave this more weight than the evidence of the medical expert, Professor Lynne Turner-Stokes, who said that M’s overall experience was negative.[viii] While one can be thankful that this view prevailed, it is deplorable that someone’s right to life should be balanced on whether their experience of life is deemed negative or positive.

The concluding section of the judgment “Observations for future cases” is deeply disturbing.  Here, with the authority of the President of the Court of Protection, Mr Baker sets out procedures for bringing future cases of patients in the “Minimally Conscious State” to court for rulings on the withdrawal of their food and fluids. Thus he is setting the scene for widening the Bland judgment

He calls for public funding to be given to any relatives who want to make such an application. In very many cases of this type, families will be divided between those who want their relative to be killed and those who want them to continue to receive care. This proposal means public funding for the killers, but no support for relatives who oppose attempts to starve and dehydrate their relatives.[ix]

[i] In accordance with normal standards of courtesy in journalism and elsewhere (which may not necessarily obtain in legal documents), we accord Ms M an honorific title (‘Ms’), at least when introducing her, on the basis that even if this title is not the formally correct one, it indicates the respect we accord her as a fellow human being. 
[ii] See Judgment (W(B) v M & S & an NHS Trust, [2011] EWHC 2443 (Fam)), §27
[iii] For a fuller commentary on Bland, see
[iv] Judgment, §64
[v] The term ‘vegetative’ in this context is offensive to many people with disabilities; the term ‘non-responsive’ is a non-derogatory alternative.
[vi] Judgment, §35
[vii] Judgment §115
[viii] Judgment §251
[ix] Judgment §260

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