Court Of Protection Considers Authorising End Of Life-Sustaining Treatment For Covid-19 Patient

Covid-19 has featured on multiple occasions in Court of Protection cases, and recently Mr Justice Hayden oversaw a preliminary hearing in a case concerning a protected party who suffered paralysis after contracting the disease. The proceedings in question were issued by the NHS Trust responsible for her care, and an order is being sought for the end of her life-support treatment, contrary to the wishes of her four adult children. The family’s views will be taken into account but not necessarily to the point that they will override clear medical opinion.

The protected party reportedly suffered “profound neurological impairment” as a result of contracting Covid-19. The medical staff responsible for treating her reported to the Court of Protection that the case was unique due to the protected party’s individual combination of symptoms and underlying health issues. They are of the view that it is not in her best interests for life-sustaining treatment to continue.

The protected party is in no fit state to make a decision for herself. She has brain damage and is paralysed from the neck down, and is barely conscious. It has been said that she is “locked-in” by her injuries and illness. However, whilst medically there appears to be a compelling case to end life-sustaining treatment, it is questionable whether the protected party would have been in agreement were she in a position to decide for herself. This is the argument her children have put forward in opposition to the NHS Trust, and the protected party’s sister also asked the Court to give her time in the hope that her condition might improve to some degree.

The Court of Protection ultimately will have to decide what is in the protected party’s “best interests” which is subject to criteria set out in the Mental Capacity Act 2005. One important factor is the protected party’s own wishes and feelings as far as she is or was able to express them. Under Section 4(6) of the Mental Capacity Act 2005, the Court must consider the protected party’s past wishes and feelings, where known. The Court must also consider the individual’s personal beliefs and values. That said, it is not the role of the Court to exercise “substituted judgment”, meaning, in essence, that the Judge will not simply put himself in the protected party’s shoes and make the decision she would make if she could.

The NHS Trust will have to demonstrate medically that there is little or no prospect of recovery to even seek an order for life-sustaining treatment to end. In circumstances where the family do not agree with the proposals of treating clinicians and have doubts over the diagnosis, they are entitled by law to ask for a second opinion from a specialist of equal status and qualification. It is also not unheard of for private and independent experts to be called in to give evidence. In this particular case, that may be difficult due to the unique nature of the protected party’s symptoms and the manner in which Covid-19 has affected her. The Court in due course will make a final decision which may draw a line in the sand as to how much emphasis medical advice will be given by Judges over other factors.