It is a sad fact that those who are very ill can become incapable of expressing their own wishes as to their medical treatment. However, as one case concerning a pensioner in a minimally conscious state revealed, such patients are entitled to respect for their autonomy and judges are adept at ascertaining what their views would have been had they been able to give them.
The woman, aged 72, had suffered permanent brain damage following a fall and, although her condition was relatively stable, she was not expected to make any meaningful recovery. She was able to smile, and showed limited signs of pleasure, but gave no indication of recognising her loved ones.
Medical experts predicted that, were a gastrostomy tube inserted directly into her stomach, she would probably survive for a further three to five years. In those circumstances, the NHS trust that bore responsibility for her care sought a High Court declaration that such treatment would be lawful.
The trust’s application was resisted by her daughter and other members of her family, who argued that, were she still capable of giving her own views, she would elect not to have such treatment. The daughter testified that her mother had told her that she would rather not be kept alive if severely handicapped. She also pointed to an email in which her mother instructed her to ‘get the pillow ready’ if she became too ill to look after herself.
In rejecting the trust’s application, the Court noted the importance of the law keeping pace with the evolution of medicine. After hearing evidence from the daughter and other members of the family, including the women’s young grandsons, the Court found that there was clear and compelling evidence that she would not have wished to undergo the treatment. The email, in particular, was a powerful indicator of her wishes and that she would have found her current circumstances intolerable and humiliating.