Ms B v An NHS Hospital Trust

Factual and Procedural Background

The Plaintiff, a woman aged 43 who became tetraplegic following a spinal hemorrhage, brought a claim seeking declarations under the High Court's inherent jurisdiction that the invasive artificial ventilation treatment provided by the Defendant NHS Hospital Trust was unlawful trespass. The Plaintiff had executed a Living Will expressing her wish not to be kept artificially alive if incapacitated. After suffering severe paralysis and becoming dependent on a ventilator, she repeatedly requested withdrawal of artificial ventilation. The Defendant Trust, responsible for the hospital treating her, declined to accede to this request, leading to legal proceedings to determine her mental capacity to make such decisions and the lawfulness of continued treatment.

The procedural history includes assessments by multiple consultant psychiatrists with conflicting opinions on the Plaintiff's capacity between April and August 2001, after which the Plaintiff was treated as having capacity. The Plaintiff initiated proceedings in January 2002 seeking declarations that she had capacity from August 2001, that the Trust had unlawfully treated her since then, and nominal damages for trespass. The Court also granted an injunction restricting publication of identifying information related to the case.

Legal Issues Presented

1. Does the Plaintiff have the mental capacity to choose whether to accept or refuse medical treatment, where refusal will likely lead to death?
2. If yes, did the Plaintiff have such capacity from August 2001 onwards?
3. If the Plaintiff had capacity from August 2001, was the Hospital's continued treatment unlawful?
4. If the Hospital acted unlawfully, is the Plaintiff entitled to nominal damages for trespass to the person?
5. Should injunctions regarding publicity be continued?

Arguments of the Parties

Appellant's Arguments

• The Plaintiff had the requisite mental capacity to make decisions about her medical treatment, including withdrawal of artificial ventilation, from 8 August 2001.
• The Hospital had been treating her on this basis but failed to respect her wishes to withdraw ventilation.
• The Trust ignored clear legal advice from its solicitors regarding her capacity and unlawfully continued treatment against her expressed wishes.
• The Plaintiff sought declarations to that effect and nominal damages to acknowledge the tort of trespass.

Respondent's Arguments

• The Defendant Trust disputed that the Plaintiff had legal capacity from August 2001 or currently.
• They relied on evidence suggesting temporary factors eroded her capacity, including her severe physical disability, ICU environment, strained relationships with carers, psychological regression, and ambivalence shown by consenting to some treatments.
• The Trust argued it was lawful to continue treatment while capacity was in doubt and that the Plaintiff’s refusal was not unequivocal.
• The Trust emphasized the unusual and difficult nature of the case and the need for careful scrutiny of capacity.

Advocate to the Court's Arguments

• Supported the Plaintiff's submissions that she had capacity and was competent to make the decision.
• Emphasized that the question of best interests did not arise; the issue was solely capacity.
• Recommended that the Trust should have taken steps to resolve the dilemma sooner and that the Official Solicitor was available to assist.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began with the presumption that the Plaintiff had mental capacity, which was rebutted only between April and August 2001 based on psychiatric assessments. After 8 August 2001, the Plaintiff was treated as having capacity, a position supported by two experienced consultant psychiatrists whose evidence was cogent and unchallenged thereafter.

The Court carefully considered the Trust’s arguments about temporary factors potentially eroding capacity, including psychological regression, ambivalence, the ICU environment, and lack of rehabilitation experience. The Court rejected these arguments due to lack of evidential support and found no impairment of capacity from these factors.

The Court emphasized that legal capacity is distinct from clinical or experiential knowledge; requiring experience of rehabilitation before capacity could be recognized was deemed legally and practically unsound. The Court acknowledged the Plaintiff’s subjective values, recognizing that life with severe disability may be worse than death for her, and that autonomy must respect such personal valuations.

Detailed psychiatric evidence, especially from Dr Sensky, was pivotal. He found the Plaintiff highly competent, rational, and consistent in her wishes. The Court accepted his assessment and the related principles of autonomy and respect for subjective experience as central to the decision.

The Court also recognized the emotional and ethical difficulties faced by the treating clinicians, who had developed close relationships with the Plaintiff and found the request to withdraw life support challenging.

Ultimately, the Court found the Plaintiff competent to make decisions about her treatment, including withdrawal of ventilation, from 8 August 2001 and for the foreseeable future.

The Court further analyzed the Trust’s failure to act effectively on the Plaintiff’s capacity and wishes, noting that the one-way weaning programme was designed more to ease clinicians’ distress than to serve the Plaintiff’s interests. The Trust’s failure to find alternative clinicians willing to comply with the Plaintiff’s wishes was a breach of duty.

The Court concluded that the Plaintiff had been treated unlawfully since August 2001 and that a nominal damages award was appropriate to mark this unlawfulness.

Finally, the Court provided detailed guidance on assessing mental capacity and managing similar cases, emphasizing respect for autonomy, prompt resolution of capacity doubts, involvement of the patient in disputes, and the duty of the Trust to seek external expertise or court intervention if necessary.

Holding and Implications

The Court held that:

• The Plaintiff has had the mental capacity to make decisions regarding her medical treatment, including withdrawal of artificial ventilation, since 8 August 2001.
• The Defendant NHS Hospital Trust has treated the Plaintiff unlawfully by continuing artificial ventilation against her competent and expressed wishes since that date.
• The Plaintiff is entitled to appropriate declarations and nominal damages recognizing the tort of trespass to the person.
• The injunction restricting publication of identifying information related to the proceedings shall continue.

Implications: The decision directly affects the parties by affirming the Plaintiff’s autonomy and rights to refuse treatment and imposes a legal obligation on healthcare providers to respect competent patients’ decisions, even when those decisions lead to death. The ruling underscores the importance of clear, timely assessments of capacity and proactive steps by healthcare institutions to resolve disputes. No new legal precedent was established beyond reaffirming existing principles, but the detailed guidance provided may assist future cases involving capacity and end-of-life decisions.