A Clinical Commissioning Group v AF

Judge: Mostyn J

Citation: [2020] EWCOP 16

Summary

This case concerned AF, a man in his mid seventies who following a stroke in May 2016 was receiving Clinically Assisted Nutrition and Hydration (‘CANH’) via a PEG. The case came before the court for determination of whether AF had capacity to make decisions about the continuation of CANH, and in the event that he did, whether it was in his best interests to receive such treatment.

The onset of the national COVID-19 medical emergency led the parties and the court at a telephone case management conference on the day before the start of the trial to agree that the hearing should take place by Skype:

The hearing took place over three days.  There were 17 continuously active participants.  11 witnesses were heard.  2 journalists observed the proceedings.  The participants and witnesses were scattered all over the country from Northumberland to Cornwall, Sussex to Lancashire.

Much of the evidence appears to have focussed on ascertaining AF’s past and current wishes and feelings about CANH. The court had to balance the following evidence:

• The evidence of SJ, AF’s daughter, that AF (who had worked for the NHS for thirty years and so was keenly aware of disability and death) had stated on many occasions that he that he would not want to be kept alive as a “body in a bed”.
• The fact that AF had not recorded these views in writing despite consulting a solicitor following the death of his wife about the possibility of making a living will.
• The evidence that on three occasions before AF was discharged from hospital to a nursing home, he had expressed a wish to die. Mostyn J held that these views were expressed after the point at which AF had lost capacity to make decisions about taking ‘the ultimate fatal step’.
• Although there were records that for a while AF resisted PEG feeding, his resistance has reduced over time and by the time of the hearing he was cooperating by lifting his top for the PEG to be connected.
• The evidence that AF derived pleasure from physical and emotional stimuli such as eating certain foods, having his back washed, listening to music and visits from pets and children.
• SJ’s strong view that continuation of CANH is not what her father would have wanted, and so it was not, in her view, in his best interests.
• The views of the GP, and the Official Solicitor acting as AF’s litigation friend, that continuation of CANH was in AF’s best interests (the CCG and the local authority remaining neutral on the issue).

Mostyn J concluded that it was in AF’s best interests to continue to receive CANH. Of particular significance in coming to this conclusion was his finding that AF’s ‘oral statements to his family cannot be construed as being applicable to anything more than a descent to a vegetative or minimally conscious or equivalent state. They cannot be construed as being applied to his present condition.’

Comment

The substantive decision in this case gives rise to some of the same almost philosophical questions as were raised in the Briggs case, and discussed also in this article by Alex here, as to the extent to which a person pre- and post- (here) a stroke is the same person.   On the face of the evidence as recorded by the judge, the decision is perhaps unsurprising given the evidence as to AF’s quality of life. Mostyn J had little difficulty in concluding that AF was not just a ‘body in a bed’ and so his previously expressed views just did not apply to the situation in which he found himself.

The case may however best remembered, for the procedure that was adopted, thanks to the  extremely powerful blog Celia Kitzinger published about the hearing. While the view from the bench was clearly that the hearing was a success – the judge stating that ‘the hearing proceeded almost without a hitch’ – SJ (despite being supported by Ms Kitzinger, counsel and solicitor) found the experience extremely difficult. The blog is essential reading for anyone involved in Court of Protection proceedings. It shines a spotlight on SJ’s experience (echoed we have no doubt by many families caught up in these extremely complex cases (both legally and emotionally)) at a time when the difficulties are magnified by the adjustments the court and the parties are having to make as a result of the public health crises. Quite how a litigant in person would be able to negotiate a substantive remote hearing, alone, from home, with a court hearing being beamed to them, perhaps via a mobile phone, is difficult to imagine.

Best interests - Medical treatment, Mental capacity - Medical treatment, Mental capacity 27th March 2020