To kill or to violate?
By Charles Foster
A highly intelligent 32 year old woman has profound anorexia. She has had it for years. It is complicated by alcohol and opiate dependency, and by personality disorder. Her BMI is 11.3. A healthy BMI is around 20. Less than 17.7 is in the anorexic range. Less than 14 indicates dangerous weight loss. Over the last 4 years her BMI has been well below 14. She describes her life as ‘pure torment’. All the things she wanted to do have been frustrated by her illness. She feels unable to give anything to the world, or to take anything out. For years she has had intense treatment for her anorexia and related conditions. On about 10 occasions she has been sectioned under the Mental Health Act. One of those periods lasted almost 4 months. Twice she has executed advance decisions refusing life-saving or life-prolonging treatment.
There are only two options: death or the violation of her autonomy . If she is not admitted against her will to hospital, detained there for not less than a year, and forcibly fed under physical or chemical restraint, she will die. She understands this perfectly well. She doesn’t actively seek death, but doesn’t want to be force fed. As well as the anorexic’s usual horror of calories, the forcible medical administration of nutrition reminds her horribly of the sexual abuse she suffered as a child.
Her loving, articulate parents want her wishes to be respected.
The prognosis is not good. Even with the draconian force-feeding regime, it cannot be said that there is a probability of a good result (in the sense of giving her a life acceptable to her). But it’s possible. The chance cannot be said to be negligible.
That’s what landed on Peter Jackson J’s desk in May. What should be done? The approved judgment, A Local Authority v E and others  EWHC 1639 (COP) was handed down on 15 June 2012.
First, she was not capacitous. That meant, absent a valid and applicable advance decision, that the best interests test principle should govern the decision-making.
It was decided that the advance decisions were not made at a time when she had capacity, and were accordingly not binding. ‘I consider that for an advance decision relating to life-sustaining treatment to be valid and applicable’, said the judge, ‘there should be clear evidence establishing on the balance of probability that the maker had capacity at the relevant time. Where the evidence of capacity is doubtful or equivocal it is not appropriate to uphold the decision.’ (para 55). This is an autonomy-honouring declaration, although some will no doubt feel, wrongly, that to apply such a high standard may frustrate the provisions relating to advance decisions – provisions which, of course, are designed to facilitate autonomy.
So: where did the patient’s best interests lie? It was a close call.
When you’re assessing best interests in such cases, you do a literal audit. You draw up a balance sheet. On one side are the factors in favour of life; on the other the factors in favour of death. It sounds cold and scientific, as befits a determination which is notionally objective. But then comes the weighting of the factors. Not every factor is equally significant. The weighting is necessarily subjective and intuitive. But the patient’s past expressed wishes and (even if she is not technically capacitous) her present views, weigh very heavily. The judge noted that the patient’s wishes and feelings ‘are not the slightest bit less real or felt merely because she does not have decision-making capacity…..particular respect is due to the wishes and feelings of someone who, although lacking capacity, is as fully and articulately engaged as [the patient].’ (para 127).
The judge concluded that ‘[t]he competing factors are…..almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced.’ (para 140).
This presumption is hallowed by constant reaffirmation by the courts, and is now reflected in Article 2 of the ECHR (which provides that everyone’s life shall be protected by law). It means, in this context, that there’s a strong legal presumption that life is valuable. Presumptions can sometimes be very valuable.
The principle is not absolute. It can give way to other considerations: see, eg, Airedale NHS Trust v Bland  AC 789. Also, as the judge noted, the Mental Capacity Act 2005 might have given absolute priority to the preservation of life, but does not. The approach taken by the Act is reflected in the MCA Code of Practice at 5.31:
“All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery.”
This meant, said the judge (para 122), that ‘[the patient’s]life is precious, whatever her own view of it now is. She is still a young woman, with the possibility of years of life before her. The prospects of her making a reasonable recovery are highly uncertain, but it cannot be said that treatment efforts are doomed to fail or that treatment would inevitably be futile.’
It was this that swung the balance. Should it have done so?
Many in the lay press think the judge was wrong. They will be followed in due course by many academic commentators. The argument is essentially that this is a suffocatingly paternalistic decision; that a woman who has suffered most terribly at the hands of her disease is being made to suffer further in order to keep in play some irrelevant, antediluvian Judaeo-Christian principles about the sanctity of life; that autonomy should have won the day (cont p. 94).
A few comments:
(a) Autonomy is a victim of anorexia. It is so badly paralysed that it can’t do all the work.
(b) The evidence was that a regime of compulsory treatment had a chance of improving the BMI, and that the patient’s mental state improved significantly as the BMI increased to 14.5/15. Accordingly the regime is an autonomy-facilitating regime.
(c) Death, so far as we know, annihilates autonomy.
(d) The language of sanctity isn’t essential. Many of the cases don’t use it. Say ‘utmost respect’ for life if you want. The presumption still does its job.
(e) There are plenty of secular commentators who regard the notion of sanctity as foundational. Look, for instance, at Hoffmann LJ (as he then was) in Airedale NHS Trust v Bland.
(f) Don’t be scared by the spectre of vitalism. It’s not remotely a corollary of the principle as it is wielded in the courts. Ultra-conservative Catholics, you’re not helping.
(g) Can we really collapse ‘respect for life’ into ‘respect for autonomy’? Won’t there be lots of casualties in the collapse? You might, for instance, end up denying life-saving treatment to young children on the grounds that they’re not autonomous. Would you treat those children because they are potentially autonomous? Well, so is the patient in this case.
The presumption in favour of the maintenance of life is essential. It’s an appropriate tie-breaker in cases like this. It’s an appropriate way of entrenching intuitions and keeping patients safe.
It could be used simply as a way of letting judges sleep better at night – to keep patients’ blood off their hands – but that doesn’t seem to happen. It seems to be used intelligently, with an acknowledgement that it can be an instrument of oppression.