Background:

CD is 66 years old, a married father of four and grandfather of two. He is very family-oriented. He was cared for as an in-patient at a hospital operated by the NHS. He has end-stage renal disease as well as ischaemic heart disease, type 2 diabetes (since 2010), vascular dementia, and has suffered recurrent strokes. He received haemodialysis at the hospital, twice weekly which takes up to four hours per session, if completed. Before his strokes, he worked as a taxi driver. 

For dialysis to be performed, CD required a catheter to be inserted. He had attempted to pull out his catheter on a total of four occasions since his third stroke, despite having one-on-one nursing and other protective measures such as placing hospital mittens on his hands.

Following his stroke, he lost his ability to speak English and can only converse in Bangladeshi. 

The NHS seeks a declaration under Section 15 of the Mental Capacity Act 2005 (MCA 2005) that CD lacks the mental capacity to make decisions about his care and medical treatment and a declaration under Section 16 that it is not in CD’s best interests to have a new haemodialysis catheter inserted under heavy sedation or general anaesthetic or to receive any further haemodialysis through the current temporary catheter or otherwise.

Decision: 

The Court of Protection ruled that it would not be contrary to CD’s best interests to insert a new tunnelled catheter and to continue haemodialysis. The Court analysed Section 4 of the MCA 2005 and the associated Code of Practice under paragraph 5.31. The case law emphasises the strong presumption in favour of sustaining life even though that presumption is not absolute. The Judge analysed the burdens and risks involved in inserting a tunnelled catheter and continuing with haemodialysis, the risks associated with sedation or anaesthesia, and the risk of CD pulling out a catheter after insertion. While those risks were regarded as significant, they did not outweigh the benefits to CD of preserving his life, or at least providing a chance of his life being preserved and enjoying the food his family members brought when they visited. The Court noted that the reason he would pull the catheters out was due to his dementia and not due to pain or discomfort.

The Court noted that “the burdens of the treatment are not such as no-one who could exercise a choice for themselves would choose to continue with dialysis”. His family pointed out that as someone believing in the Muslim faith, he would see his faith as involving “an acceptance of life's hardships as part of God's plan. There were limits to what a person should tolerate and they did not believe that he should, or that he would have wanted to, continue to live with intolerable burdens. But, they said, overall his current life has meaning and is worthwhile to CD.”

It was in CD’s best interests and lawful for him to have a new tunnelled haemodialysis catheter inserted under sedation or general anaesthetic and to receive haemodialysis thereafter subject to any significant change in his clinical presentation provided that the treating clinicians were willing to offer that treatment.

Implications:

Despite the heavy medical history, the Court sided with the presumption in favour of sustaining life. The opinion of the children was taken into consideration along with his beliefs, values and past wishes. The Court was of the opinion that the patient’s life would continue to bring him real benefits alongside its burdens. 

This decision shows that judges will try to consider all aspects, even if the person is no longer able to express them. The Court will ask itself what the person would have wanted, had they still had the capacity to do so.