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A Conscious Decision

The recent ruling in W v M is thought to be the first case to come to court to decide on withdrawal of life-sustaining treatment, involving diagnosis of a patient in a minimally conscious state (MCS).

The facts of the case are particularly tragic.  M suffered a non-traumatic severe brain injury following infection by viral encephalitis in 2002, after which she was left in an MCS.  M was able to breathe unaided but was totally dependent on others for all aspects of her care.  She has no functional communication and only intermittent awareness of herself and her environment.  She is fed by way of artificial nutrition and hydration (ANH).  M's mother, supported by the rest of her family, sought a declaration that it was lawful and in M's best interests that her ANH be removed and that she be allowed to die.

While the judge accepted the evidence of M's family that M had expressed a clear and consistent view prior to her illness that she would not wish to continue living in a condition totally dependent on others and that the law must take those views into account, he concluded that they were not formal and binding and that they did not carry substantial weight in his decision.

Importantly, M had not made a formal and legally binding advance decision by way of a Lasting Power of Attorney; had she done so, the court would have been obliged to abide by that decision.  Ultimately, the factor which the judge found to carry substantial weight was the preservation of life.

With advances in medical treatment meaning that more and more individuals will be kept alive in such states of disordered consciousness, this case highlights the need for everyone to consider whether to make a written advance decision and avoid the distress to family members who may otherwise have to make the agonising decision of whether to bring the matter to court in order to carry out the loved one's wishes.

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