The Briggsian Heresy? Should Previously Expressed Wishes Determine Best Interests in Decisions Relating to Withdrawal of Clinically-Assisted Nutrition and Hydration?

Abstract

This paper examines the Court of Protection decision in Briggs v Briggs. It considers whether the approach of the Court, which gave effective decisive weight to a patient’s previously expressed wishes about whether he should be kept alive in a minimally conscious state, is a proper application of the ‘best interests’ test under the Mental Capacity Act 2005. It assesses whether the Briggs approach is effectively applying a ‘substituted judgement’ test and considers the difficulties in ascertaining what a person’s actual wishes are.

KEYWORDS:

• CANH
• mental capacity
• Briggs v Briggs
• withdrawal of artificial nutrition
• prolonged disorders of consciousness

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Consistently with usual Court of Protection practice, incapacitous persons are be referred to as ‘P’ in this paper.

2 Briggs does not concern patients who have an advance directive outlining their consent to treatment should they lose capacity in the future, which are enforceable under statute if valid (s.26, Mental Capacity Act 2005); it concerns cases where P’s wishes are not expressed in such a formal way.

3 This may have roots not only in the Biblical injunction against killing, but also in death depriving the King of a subject who could provide service to him. This was part of the rationale behind suicide being a common law offence; Hales v Pettit (1562) 75 ER 387, at 400. The State’s interest in protecting life may initially have had a pragmatic purpose.

4 There is, however, no right to demand a particular form of treatment which a treating physician does not consider clinically justified, and nor will a court make an Order requiring a physician to act in such a way (R (Burke) v General Medical Council [2005] EWCA Civ 1003, at [55])

5 It was recognised that Mr Briggs was a ‘different person’ as a result of his accident (Briggs, [99]).

6 Cf. Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG [2019] EWCOP 21, in which the Court of Protection had the benefit of ‘striking’ and ‘compelling’ evidence from family and friends of a patient’s Catholic faith, and belief in the intrinsic value of life, in ordering that she should continue to be intubated against the advice of treating physicians. In contrast, in Abertawe Bro Morgannwg University Local Health Board v RY [2017] EWCOP 2, the Court was unwilling to speculate on what P’s wishes might be in the absence of clear evidence ([41]).

7 The latter is particularly worrisome. Even the most loving and supportive family may be conscious of the physical and psychological impact of caring for a patient, which is significant and burdensome (Giovannetti et al. 2013, pp. 16–17). We should not discount the possibility of less scrupulous family whose intentions may be adverse to those of the patient.

8 Also described as ‘more likely than not’. In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, at 586.

9 The dissenting judges went further, and suggested that a statement by the applicant that he would not wish to live ‘in a state of great dependency’ would not necessarily provide evidence of sufficient certainty of a wish to be deprived of food and water. Arguably, this same concern could have applied to Paul Briggs; even if his would have wished to die in the circumstances in which he found himself, can it be said that he would have wished to die by starvation and dehydration? Even a clear wish to die might not necessarily demonstrate a wish to have CANH withdrawn.

10 This, presumably, is why written statements are specifically mentioned in s4(6)(a) MCA 2005. Such statements provide prima facie – but not necessarily conclusive - evidence of P’s contemporaneous views.