Saturday, 1 October 2011

Rights: Minimally Conscious State

W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others [2011] EWHC 2443 (Fam).

In the first case of its kind, the Court of Protection ruled that withdrawing artificial nutrition and hydration from a person in a minimally conscious state was not, in the circumstances, in that person’s best interests. In its determination, the Court looked at s4 of the Mental Capacity Act (MCA) and authorities such as the landmark case of Airedale NHS Trust v Bland [1993] AC 789. s4 MCA 2005 states that, in determining best interests, all relevant circumstances should be considered, including the person’s past and present wishes and feelings, and the views of those close to him.
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Polly Toybee has expressed her opinion on this case in arguing that it is a 'sad reminder of the courts ability to inflict cruelty.'  But what if the evidence offered by some of the carers, that M is capable of positive experiences, was not as Toynbee suggests, 'far-fetched'? Yes, the family did not get the decision they wanted, but how can we possibly know what M wants here and now?

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