NHS Trust v Y & Anor

This is a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration (“CANH”) from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient’s family are agreed that it is not in the patient’s best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn.

On 2 June 2017 Mr Y, a 52 year old man, suffered a cardiac arrest after a myocardial infarction as a result of coronary artery disease. It was not possible to resuscitate him for well over 10 minutes, resulting in severe cerebral hypoxia and causing extensive brain damage. It is common ground that Mr Y lacks capacity to make a decision as to his future treatment and care.

Two medical experts with extensive qualifications and experience in the field of neurological rehabilitation agree that Mr Y is in a very low level of responsiveness, he has no awareness of self or his environment, and it is highly improbable that he will re-emerge into consciousness.

Mr Y did not execute any advance decision to refuse treatment or a lasting power of attorney. Mr Y’s wife, his children and wider family have considered carefully what Mr Y’s wishes would be and are firmly of the view that he would not wish to be kept alive given the poor prognosis.

The clinical team and Mr Y’s family are agreed that it would be in his best interests for CANH to be withdrawn, with the consequence that he would die within a period of 2 to 3 weeks.

The claim for a declaration that there is no mandatory requirement to seek consent to the withdrawal of CANH from the court is made by the claimant (“the Trust”) and supported by the second defendant, Mr Y’s wife (“Mrs Y”). The Trust’s case is that there is no statutory or common law obligation to refer the decision to the court where, as here, there is no dispute between the clinicians and the family as to the incapacitated person’s best interests.

The claim is opposed by the Official Solicitor, appointed to act on behalf of Mr Y and represent his best interests. The Official Solicitor accepts that there is no statutory obligation to bring an application for withdrawal of CANH before the court but submits that there is a common law obligation to do so, in order to ensure that Mr Y’s Article 2 and Article 6 Convention rights are not infringed and to provide independent scrutiny of the decision.

Mr Y is a 52 year old man, who is married and has two adult children. Before his cardiac arrest, he worked as a financial analyst in an investment bank in London. He was a very active man. He worked hard in a stressful environment and for long hours but he had a healthy diet and regular health checks. He enjoyed running, skiing and regularly worked out at a gym. He travelled worldwide for work and leisure. He enjoyed eating out, loved music and attended many rock concerts.

Since his cardiac arrest on 2 June 2017, Mr Y has been in a prolonged disorder of consciousness (“PDOC”). On 19 July 2017 Mr Y was admitted to a regional hyper-acute rehabilitation unit under the control of the Trust so that his level of awareness could be assessed. During the period since his admission, Mr Y has been subject to a detailed clinical assessment, 22 assessments measured against the Wessex Head Injury Matrix (“WHIM”) and 19 assessments measured against the Coma Recovery Scale (“CRS-R”). Mr Y’s family have reported no evidence of interaction with, or recognition of, them.

The opinion of his treating consultant, Professor A, is set out in a report dated 29 September 2017. Although a formal diagnosis of permanent vegetative state (“PVS”) has not yet been made because he has not been in PDOC for 6 months, Professor A’s medical opinion is:

“Mr [Y] has, however, been in PDOC for several months following hypoxic brain injury this indicates very severe brain damage. He does not demonstrate any clear trajectory of improvement. Therefore, even if he were to regain consciousness, he will continue to have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life.”

Professor A’s opinion has been confirmed by an independent, second opinion by Professor B, in a report dated 16 October 2017. Professor B saw and assessed Mr Y on 13 October 2017 at the rehabilitation unit, reviewed his medical notes and discussed Mr Y’s condition with Mrs Y, their daughter (by telephone) and Mr Y’s key worker. Professor B’s medical opinion is:

“… despite prolonged observation in a variety of settings by a variety of people both informally, and using formal structured assessments, there has been no consistent or repeated evidence of any behaviours consistent with any awareness whatsoever. All the observations are consistent with and characteristic of those seen in people in the vegetative state, unaware of themselves and their environment…

I conclude that beyond a reasonable doubt he is currently and has been from the outset completely unaware of himself and his environment, and that he fulfils the generally accepted criteria for being in the vegetative state…

I further conclude that there are no plausible reversible causes for this condition or exacerbating this condition, and that no further investigations are needed either in relation to the underlying cause, or in relation to his level of awareness…

Consequently one can state that his level of current function is the best that he will achieve for the remainder of his life, and that there is no prospect that he will ever have any greater level of independence or ability to communicate and interact socially.”

Having considered Professor B’s report, Professor A provided a further report dated 30 October 2017:

“I would certainly agree with [Professor B] that [Mr Y] suffered a very severe diffuse hypoxic brain injury, and that he is in a very low level of responsiveness with no trajectory towards recovery. So at this stage (now approaching 5 months since injury) I would agree that it is highly improbable that he will re-emerge into consciousness.”

Best interest meetings were held by Professor A with Mrs Y and the children on 21 July 2017, 10 August 2017 and 8 September 2017.

Mrs Y has written a letter, stating that she has consulted the children, Mr Y’s brother and sister, and his parents. They are all agreed that Mr Y would not want to be kept alive in a vegetative state, or in a minimally conscious state, or with profound disabilities. He would hate to be helpless and dependent on other people for his daily needs. He would not want to live in a care home. This is confirmed in a letter from Mr Y’s children.

Professor A and Professor B have concluded that it is not in Mr Y’s interests to continue with CANH and recommend that this treatment should be withdrawn. The inevitable consequence of withdrawing CANH is that Mr Y will die.

Mr Y’s wife and family are clear that they wish the treatment to stop and to let Mr Y die peacefully.

On 1 November 2017 these proceedings were issued, seeking declaratory relief.

On 3 November 2017, at a contested hearing attended by the Trust, the Official Solicitor and Mrs Y, Mr Justice Fraser ordered this expedited final hearing of the matter and made a reporting restriction order.

At the commencement of this hearing, Mr Gordon QC, for the Official Solicitor, made an application for the matter to be adjourned, so that it could be transferred to a specialist judge in the Court of Protection, with a realistic timetable to allow the Official Solicitor to investigate the case and reach a conclusion as to what he assesses to be in Mr Y’s best interests. He submits that the claim raises a fundamental point of principle with potentially grave consequences for anyone who meets the criteria of PDOC and that a final hearing on the issues of law and policy should not be made without an adequate opportunity to make proper submissions.

The application for an adjournment and/or transfer to the Court of Protection was opposed by Mr Sachdeva QC on behalf of the Trust and Ms Butler-Cole on behalf of Mrs Y. Their position is that this question has already been considered by Mr Justice Fraser and a final, expedited hearing ordered. The claim has been made in this court so as to avoid the need for an application to be made in the Court of Protection, with the resulting delay in determination, and to obtain a binding ruling on the point of principle. The urgency arises from the fact that if the matter is not decided now, Mr Y will be transferred to a care home, which would be against his wishes as identified by his family. The Official Solicitor has had sufficient time to prepare for this hearing, particularly as the issue before the court is one that has recently been the subject of a judgment by the Court of Protection in another case, following detailed submissions by the Official Solicitor: Re M [2017] EWCOP 19.

I refused the application for an adjournment and/or transfer for the following reasons:

The Mental Capacity Act 1985 (“the MCA”) created new provisions relating to persons who lack capacity and established the Court of Protection.

It is common ground that Mr Y lacks capacity within the meaning of the MCA.

Section 1(5) of the MCA provides:

“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

The best interests test is set out in section 4 of the MCA:

Section 5 makes the following provisions for acts in connection with care or treatment:

Section 15 of the MCA empowers the court to make declarations as to the lawfulness or otherwise of any act done, or yet to be done, in relation to a person who lacks capacity. Section 16 provides that those powers are subject to the principles set out in sections 1 and 4. Therefore, any declaration as to lawfulness must be made in the best interests of the person lacking capacity.

The MCA expressly provides for acts done, and decisions made, on behalf of a person who lacks capacity, by persons other than the court. Section 4 sets out the best interests test for the court and for others (see section 4(9)). The best interests test applies in respect of cases concerning life–sustaining treatment, which would include CANH. Section 5 sets out the circumstances in which a person will avoid liability for acts done in connection with the care or treatment of a person who lacks capacity. The MCA does not stipulate that the best interests test must be determined by the court in every case. It does not stipulate that particular types of case must be determined by the court. It does not limit the protection afforded by section 5 to cases that have been determined by the court.

Section 42(4)(e) of the MCA provides that a person acting in a professional capacity in relation to a person who lacks capacity must have regard to any relevant code of practice.

The MCA Code of Practice contains the following provisions:

“6.18

Some treatment decisions are so serious that the court has to make them – unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them … or they have made a valid advance decision to refuse the proposed treatment … The Court of Protection must be asked to make decisions relating to the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS) …”

“8.18

Prior to the Act coming into force, the courts decided that some decisions relating to the provision of medical treatment were so serious that in each case, an application should be made to the court for a declaration that the proposed action was lawful before that action was taken. Cases involving any of the following decisions should therefore be brought before a court… decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS).”

There is a statutory requirement for clinicians to have regard to the relevant codes of practice but the codes of practice do not create independent legal obligations.

Practice Direction 9E to Part 9 of the Court of Protection Rules 2007 sets out the procedure to be followed where the application concerns serious medical treatment and includes paragraph 5:

“Cases involving any of the following decisions should be regarded as serious medical treatment for the purpose of the Rules and this practice direction, and should be brought to the court: (a) decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state…”

It is common ground that practice directions do not create any substantive legal obligations.

The Court of Protection Rules Committee has decided that Practice Direction 9E will be removed and not replaced as from 1 December 2017.

The fundamental principle of the sanctity of human life is enshrined in Article 2 of the Convention: everyone’s right to life shall be protected by law.

The right to life is not absolute. As a matter of principle, the withdrawal of CANH from a person who lacks capacity, resulting in his death, may be lawful where it is not in his best interests to continue such treatment: Airedale NHS Trust v Bland [1993] AC 789 (HL) per Lord Keith p.859B-D; Lord Goff pp.866G-868E; per Lord Lowry p.877B; Lord Browne-Wilkinson pp.884G-885B; Lord Mustill pp.897F-898A.

In Bland their Lordships expressed views that such cases should be brought before the court as a matter of practice but did not lay down any legal principle that the withdrawal of CANH from a person who lacks capacity may be lawful only where it has been sanctioned by the court:

In R (Burke) v General Medical Council [2005] EWCA Civ 1003 at paragraphs [70], [71] and [80], the Court of Appeal indicated, per curiam, that although good practice may require medical practitioners to seek a declaration of lawfulness from the court where the legality of withdrawal of ACNH is in doubt, there is no legal duty to do so.

In Aintree University Hospital HS Trust v James [2013] UKSC 67, the Supreme Court considered the first case to come before it under the MCA. Baroness Hale, giving the judgment of the court, stated at paragraph [22]:

“…the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interest, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.”

And at paragraph [47]:

“… if the clinical team are unable to reach agreement with the family or others about whether particular treatments will be in the best interests of the patient, they may of course bring the question to court in advance of those treatments being needed…”

Those observations make it clear that the lawfulness of treatment is not dependent on the court’s ruling; the court can only give consent to proposed treatment where it is lawful. Further, although reference was made to the availability of an application to the court where there was disagreement with the family, Baroness Hale did not state that an application was mandatory in all cases.

In N v A Clinical Commissioning Group [2017] UKSC 22, the Supreme Court considered a dispute as to the care of a person lacking capacity. Baroness Hale stated at paragraph [48]:

“No doubt if there had been no dispute with the family about his care, there would have been no need to make an application. Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute … then it may be necessary to bring the case to court, as the authorities did in this case …”

This does not suggest that all cases concerning the withdrawal of CANH should be brought before the court. Further, it does not lay down any legal principle that such cases must be brought before the court.

In Director of Legal Aid Casework v Briggs [2017] EWCA Civ 1169, King LJ indicated, in obiter remarks, the circumstances in which such cases should be referred to the court at paragraph [108]:

“(i)

If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA.”

“(ii)

If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.”

In Re M (Withdrawal of Treatment: Need for Proceedings) [2017] EWCOP 19, the Court of Protection considered whether it was necessary to refer the proposed withdrawal of CANH to court where there was no dispute between the clinicians and the family as to best interests of the patient. Following submissions by the parties, including the Official Solicitor, Jackson J (as he then was) decided that, on the facts of the case, there was no legal requirement for the decision to withdraw CANH to be taken by the court: paragraphs [37] & [38].

The authorities do not establish any common law principle that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court.

The Trust, supported by Mrs Y, submits that there is no rule of principle or binding authority for the proposition that there is a legal obligation to take the question whether it is in Mr Y’s best interests to continue with CANH to the Court of Protection where there is no dispute between the clinicians and those caring for Mr Y or interested in his welfare as to his best interests.

The medical evidence is clear that Mr Y is in PDOC, unaware of self and his environment, and his prognosis is poor. The Trust and his family agree that the continued provision of CANH in these circumstances, taking account of his wishes and feelings, is contrary to his best interests. In those circumstances, no useful purpose would be served by making an application to the Court of Protection. On the contrary, the delay in obtaining a determination of such an application would result in prolonged unlawful treatment of Mr Y (as it would be against his best interests) and further suffering on the part of his family.

The Official Solicitor’s position is that the withdrawal of CANH engages Mr Y’s Article 2 and his Article 6 rights. An application to the Court of Protection is always required in such cases so that the voice of the patient is heard. Reliance is placed on Ashingdane v United Kingdom [1985] 7 EHRR 528 at paragraph [57] where the ECHR held that limitations on the right of access to a court:

“… must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.”

Mr Y’s Article 6 rights would be engaged in the event of any dispute or doubt as to the medical evidence and/or his best interests. However, in Ashingdane, the ECHR held at paragraph [55] that the right of access, forming part of the Article 6 right to a court, arises where a person:

“… considers on arguable grounds that an interference with the exercise of his (civil) rights is unlawful …”

In this case, the Official Solicitor has not identified any arguable grounds that the decision taken by the Trust is unlawful. The guidance published by the General Medical Council, the British Medical Association and the Royal College of Physicians has been followed in assessing Mr Y’s condition and prognosis. A second, independent, medical opinion has been obtained. Mrs Y has obtained independent legal advice. Mr Y’s family has been consulted so as to ascertain Mr Y’s wishes and feelings, beliefs and values, and to establish the views of the family. Although the Official Solicitor has not carried out a full investigation into this case, there has been sufficient time for any concerns to be identified, as to the process carried out by the Trust, any doubts as to the diagnosis or prognosis, and any further investigation or consultation that might be necessary. None has been identified.

The Official Solicitor submits that the seriousness of all cases concerning withdrawal of CANH from persons who lack capacity requires that they should be brought before the Court of Protection. It is necessary that there should be objective and neutral scrutiny of each case by the Official Solicitor and/or the court so as to protect the person’s Article 2 rights.

Bland established that the withdrawal of CANH from a person who lacks capacity is not an unlawful interference with the person’s right to life where it is not in his best interests to continue such treatment. The MCA was introduced to create the legislative framework so that the fundamental rights, including Article 2 rights, of persons who lack capacity, could be protected. The principles in section 1 of the MCA are intended to ensure that the rights of vulnerable persons are protected. Parliament did not consider it necessary to insert into the MCA a requirement that there should be oversight by the Official Solicitor and/or the court in all cases of withdrawal of CANH.

The Official Solicitor submits that uncertainties are likely to arise if there is no legal requirement for all CANH withdrawal cases to be referred to court. It is clear that there could be disputes or doubts regarding diagnosis or prognosis, misunderstanding by the family as to the person’s wishes and feelings, or doubts as to the motives of the family. There could be uncertainty as to the nature and extent of the consultation required with families and others. The MCA requires the treating clinicians to consider all the relevant circumstances and to take specific steps when determining the best interests of a person without capacity. It is likely that there will be cases requiring the court’s determination of difficult questions. The authorities are clear that every case is fact-specific and where there is any dispute or doubt, there should be an application to the court. However, those issues do not arise in this case.

There is no rule of principle or binding authority for the proposition that there is a legal obligation that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court.

There is a rule of practice that in general such cases should be determined in the Court of Protection. However, the decision in Re M establishes that where the clinicians have followed the MCA and good medical practice, there is no dispute with the family of the person who lacks capacity or others interested in his welfare, and no other doubts or concerns have been identified, there is no requirement to bring the matter before the court.

Applying the ratio or following the dicta in Re M, this is an appropriate case in which to grant declaratory relief. The terms of the declaration sought are too wide. It is not necessary or appropriate for this court to make a declaration that applies beyond this case and the release from liability sought is too wide.

The court grants a declaration that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration (“CANH”) from Mr Y who has a prolonged disorder of consciousness in circumstances where the clinical team and Mr Y’s family are agreed that it is not in his best interests that he continues to receive that treatment.

The parties have indicated that it is likely that any decision will be appealed. I will invite submissions from the parties as to any further orders required.