Case Summary: Briggs v Briggs

Court of Protection case summary

08/05/2017

When does a patient's decision on life sustaining treatment prevail over the presumption in favour of preserving life? This case will be of interest to commissioners, providers and care co-ordinators as it provides guidance in terms weighing up all best interest factors where the patient had previously made strong statements regarding removal of life sustaining treatment.

 

Case

Briggs v Briggs (by his litigation friend, the Official Solicitor) and others [2016] EWCOP 53, [2017] All ER (D) 02 (Jan)

Topics

  • Minimally Conscious State
  • Removal of clinically assisted nutrition and hydration ("CANH")
  • Preservation of life
  • Self-determination
  • Best interests
  • S4(6) Mental Capacity Act 2005

Practical Impact

  • A conclusion on what P would have done is not determinative of the MCA best interests test. The test is not a 'what P would have done test'. It is a best interest test and so a test that requires the decision-maker to perform a weighing or balancing exercise between a range of divergent and competing factors
  • If the decision that the individual would have made could be ascertained with sufficient certainty, it can prevail over the very strong presumption in favour of preserving life
  • S4(5) does not preclude the court from making an order with the result that CANH is not to continue

Summary

 

The court gave great weight to the patient's pre-accident view that life on a "life support machine" would "not be living". As his pre-accident views on sustaining his life could be ascertained with certainty, the court held that this would prevail over the normal principle of preservation of life. It was therefore not in Mr Briggs' best interests for clinically assisted nutrition and hydration to continue.

Mr Briggs was in a minimally conscious state in hospital, receiving CANH. His family and treating team disagreed as to his continuing treatment. Mr Briggs had previously stated strong opinions around the topic of life support, in that he would want any life support machine turned off, as it would not be "living". His wife therefore considered it would be in his best interests for CANH to be ceased, and to receive only palliative care at a hospice. The preferred option of the treating clinicians, the Trust and the CCG was that Mr Briggs should be moved to a rehabilitation unit where CANH would be continued.

The fundamental principles engaged were the strong (but not absolute) presumption of the sanctity of life, and the principle of self-determination.

It was held that a holistic and enabling approach should be taken to the best interest test. After weighing up competing factors, the court decided that in Mr Briggs' best interests, and in exercise of his right of self-determination, he would have not consented to the continuation of CANH in the circumstances.

It was held that if the decision that the individual would have made could be ascertained with sufficient certainty, it should generally prevail over the very strong presumption in favour of preserving life.

The court therefore did not provide consent on Mr Briggs' behalf for the continuation of CANH.

Background

On 3 July 2015 Mr Briggs was victim of a catastrophic traffic accident and as result he suffered serious and permanent brain damage, and was in a minimally conscious state in hospital. Unusually, the proceedings were brought by Mr Briggs' wife rather than the NHS Trust and the CCG. Mr Briggs' wife felt it was in Mr Briggs' best interests to cease to be given clinically assisted nutrition and hydration.

The court's decision was ultimately whether:

  1. Mr Briggs would move to a rehabilitation unit for further assessment and treatment, which would include CANH, with the possibility that his degree of consciousness will improve; or
  2. Mr Briggs would move to a hospice where he would receive palliative care, his CANH treatment would not continue, and as a result he would die.

Mr Briggs' wife and family were convinced that if he was able to express his view it would be "enough is enough." Evidence was brought about conversations he had with family members on the topic of life support. Mr Briggs always held the view that he would want the life support machine to be turned off as he would not want to be kept alive like that as it was not "living."

Despite clear physical evidence of extensive brain damage, Mr Briggs was the subject of a SMART assessment over the period 23 February to 17 March 2016. Both experts carrying out the test recommended that Mr Briggs should be moved to a specialist rehabilitation unit because after 6 months there it would be possible to give a clearer neurological diagnosis and prognosis. The "best case scenario" was stated to be that Mr Briggs may be able in the future to display emotion and answer simple questions about his feelings. The two neuro-rehabilitation consultants agreed that any improvement in Mr Briggs' level of consciousness would not be accompanied by a significant increase in his physical abilities.

Discussion in Court. The fundamental principles that were engaged were, on the one side, the sanctity of life and so the very strong (but not absolute) presumption in favour of continuing Mr Briggs' life and, on the other side, the principle of self-determination.
Key Findings If the decision that the individual would have made could be ascertained with sufficient certainty, it should generally prevail over the very strong presumption in favour of preserving life.

 

This article was written by Sumayyah Malna, Solicitor, and Laura Pearce, Legal Apprentice.

 

Please contact Hannah Taylor if you wish to discuss this case or any related topics further. 

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.

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