This judgment from November 2015 is in line with a number of recent medical best interests cases which have emphasised P’s wishes and feelings. It highlights the importance and difficulty of ascertaining what those wishes and feelings might be, or had been at a time when P had capacity.

M v N [2015] EWCOP 76 (Fam) saw Mrs N’s daughter seek a declaration that it was not in Mrs N’s best interests to continue to receive life sustaining nutrition and hydration. Mrs N lacked litigation capacity and the capacity to make decisions about her care and treatment. Her multiple sclerosis had progressed to the point where her quality of life was minimal.

In applying the Mental Capacity Act 2005 framework to determine Mrs N’s best interests Hayden J focused on s.4(6) which involves considering:

• the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), and
• the beliefs and values that would be likely to influence his decision if he had capacity.

Hayden J acknowledged that recent authorities such as Wye Valley NHS Trust v B [2015] EWCOP 60 and Sheffield Teaching Hospital Foundation Trust v TH and TR [2014] EWCOP 4 had given significant weight to P’s wishes, feelings, beliefs and values in cases where non-treatment or withdrawal of treatment would almost inevitably result in P’s death.

Much of the evidence about Mrs N focused on her moral code, her values and how she responded to difficulties in her earlier life. In reaction to her own parents’ senile dementia, Mrs N had commented “if I ever get like that shoot me!“, rarely visited them as she couldn’t bear to see them in the grip of the disease, and told her husband that she herself did not wish to be “a burden“. Mrs N was also in almost total denial about her multiple sclerosis, and some 20 years in the past she had told her son that she wished to die.

After hearing the family’s evidence, the Official Solicitor withdrew his opposition to Mrs N’s daughter’s application. Hayden J stated that he was required to:

“evaluate the ‘inviolability of life’ as an ethical concept and to weigh that against an individual’s right to self-determination or personal autonomy… the balance is almost a balance of opposites: the philosophical as against the personal.”

In granting the declaration, he said:

“Ultimately I have concluded that [Mrs N’s] wishes… coupled with the intrusive nature of the treatment… rebut any presumption of continuing to promote life… in this case respect for Mrs N’s dignity and human freedom overwhelms further prolongation of life…”

It is notable that the evidence going to Mrs N’s wishes and feelings was rather slim. In M v N, as in so many cases, it remains an incredibly difficult task for a court to extrapolate P’s past comments or attitudes in order to decide on a present medical dilemma with the most profound of consequences. This will be particularly pronounced where P may never have had experiences like Mrs N’s that prompted him or her to express their feelings about such scenarios. In such a context, the value of drawing up advance decisions or ‘living wills’ cannot be overstated.