Judge: MacDonald J
Citation:  EWCOP 18
In this case MacDonald J gave a detailed judgment to explain why he endorsed an agreed position that he would not consent on behalf of a woman to the continuation of Clinically Assisted Nutrition and Hydration (‘CANH’). It is of some importance as the paradigm example of a case that still has to come to court following An NHS Trust v Y  UKSC 46, in which the Supreme Court had made clear that where there is a disagreement as to a proposed course of action, or where the approach is finely balanced, “an application to the court can and should be made.”
Given the intense focus on P’s wishes and feelings in medical treatment cases, the judgment contains a considerable amount of very personal information about the person at the centre of this case, a woman who took an overdose of heroin, went into cardiorespiratory arrest, and suffered a severe hypoxic brain injury. For present purposes, one feature is key, namely that she had had a relationship with a man who had suffered a traumatic brain injury that required him to be placed on life support. P was involved in the decision to terminate his life support. She told her mother that she would not want to be left in such condition if anything happened to her.
After P had suffered the hypoxic brain injury in April 2014 after a heroin overdose, best interests meetings were held. At what appears to have been the first formal one, in June 2014, P’s mother had made clear that she did not consider P would wish to live in the circumstances she found herself in.
Following initial treatment in hospital, P was discharged to a nursing home in August 2014. As MacDonald J noted, the nursing home (‘the Unit’):
is committed to rehabilitation work with those who suffer from neurological impairment. The home endeavours to improve the quality of life for all its residents, each of whom have very severe neurological disabilities. It is clear from the evidence before this court that the ethos of the Unit is about making the most of the lives of each individual labouring under neurological disability and endeavouring to maximise their potential. Within this context, a number of the staff at the Unit have made clear within the context of these proceedings that they have a strong ‘pro-life’ (their term) ethos.
P’s diagnosis was the subject of some variation; she was initially considered to be in a vegetative state, and then, some months later, to be in a minimally conscious state. Importantly, there was a difference of opinion between the views of the Unit caring for her and of her family as to her level of awareness, those caring for her at the Unit taking a much more optimistic view than that of the family.
The consultant in neurological rehabilitation medicine, Dr H, and Dr N, P’s GP, declined to act as decision-makers in relation to withdrawal of CANH. Dr N did not explain why this was; Dr H explained that he was one of two Consultants in Neurological Rehabilitation in the area assessing patients at different stages of recovery from brain injury. He therefore “adopted a blanket policy of maintaining a neutral position and not expressing a view as to best interests, in order not to be categorised as someone who was either pushing for withdrawal or not.”
The Unit was opposed to any discontinuation of CANH for two linked reasons:
First, because the staff at the Unit considered that P felt pain, laughed, grimaced, and reacted, despite her all-encompassing dependence. Second, staff felt that any decision to discontinue CANH in relation to P could apply equally to all patients at the Unit. More generally, Ms PL (Clinical Lead at the Unit) told Dr Pinder [the independent expert] that in stating that both she and her staff would not want CANH withdrawn, she stated that this was not particularly because they felt it was against the best interests, but because “… they are all ‘pro-life’ in general and do not agree with actively doing anything that is likely to shorten someone’s life.” Amongst the staff more widely, opposition to any withdrawal of CANH from P tended to involve general objections in principle to withdrawing CANH from a patient like P, a desire to continue caring for her and reluctance to be involved personally in the withdrawal, but also included opposition on the basis of the quality of P’s life.
Ultimately and given the “consistent and firmly expressed opinion of P’s eldest daughter, TD, half-sister, LD, and former partner, NG in favour of the withdrawal of CANH,” the CCG funding her care agreed to take the lead in considering invoking the legal process to obtain a decision on whether it was in P’s best interests for CANH to be withdrawn. As part of doing so, and prior to bringing proceedings, they instructed an independent expert, before convening a further best interests meeting in January 2019, at which the Unit maintained its expressed reservations with respect to the removal of CANH, and P’s family maintained their position that P would not have wanted to live as she was. The CCG then made the application to the Court of Protection.
Although there was no formal dispute before the court (the CCG being neutral, and the Official Solicitor on P’s behalf agreeing with P’s family that it was not in her best interests for CANH to be continued), MacDonald J gave a detailed judgment. He agreed that with the Official Solicitor that (following Briggs) “P’s past wishes and feelings on such an intensely personal issue as whether her CANH should be withdrawn can be ascertained with sufficient certainty and, on the particular facts of this application, should prevail over the very strong presumption in favour of preserving her life where those wishes were clearly against being kept alive in her current situation.”
MacDonald J gave:
careful consideration to the views of the staff of the home in which P is cared for. They have the advantage of regular contact with P and are in a position to develop a detailed picture of her current presentation. Against this, they have not had the benefit that the family have had of knowing P when she was capacitous and of seeing and experiencing all of the many varied facets of her character, what she thought, what was dear to her, what she wished for the future and, importantly, what she believed about the situation in which she now finds herself. Whilst the ‘pro-life’ approach (as they themselves describe it) taken by a number of the members of staff in the current situation is a valid point of view, in the circumstances of this case I am satisfied that it is contrary to the clearly expressed view of P before she lost capacity.
However, having conducted a detailed analysis of relevant parts of P’s life, including, in particular, what had happened around the time of the death of her former partner, MacDonald J expressed himself:
sufficiently certain that P would not in her current situation have consented to ongoing life sustaining treatment, a position that is consistent with all that the court understands about her beliefs, her outlook and her personality, and with the clearly and consistently expressed views of her loving family, borne of their direct experience of her views and wishes and of who she was. In all the circumstances, I am satisfied that the sanctity of P’s life should now give way to what I am satisfied was her settled view on the decision before the court prior to the fateful day of her overdose in April 2014.
The CCG in this case undoubtedly did the right thing in terms of bringing the case to court; the fact that it had also ‘front-loaded’ the application by obtaining independent expert evidence in advance also meant that it was possible for the proceedings to be resolved much more quickly than would otherwise have been the case.
However, it is very problematic that it took over four years to address the fact that there was a clear disagreement as to whether continuing CANH was in P’s best interests. It is sincerely to be hoped that with the publication of the BMA/RCP Guidance on CANH, which featured briefly in the decision (see paragraph 25), the nettle will be grasped very much earlier in other cases. In this context, it is perhaps to be regretted that MacDonald J did not highlight the discussion in the Guidance about conscientious objection, including that:
Provider organisations, including care homes, that carry religious or other convictions that would prevent them from making and implementing particular decisions about CANH should be open about that fact when a best interests decision is needed. All such organisations have a duty, however, to comply with the law, including ensuring that best interests assessments are carried out on a regular basis. These assessments should specifically consider the question of whether CANH continues to be in the patient’s best interests as part of the care plan review. Where necessary, organisations should make arrangements for these assessments to be carried out in, or by staff from, another establishment.
In relation to the BMA/RCP Guidance, we also note that training materials and case studies to accompany the Guidance have now been published and can be found here.
In terms of the substance of the decision, it is the model of a post-Aintree approach to best interests, with a clear eye to the gravity of the decision and of the principles in play. In its intense focus on seeking to reconstruct what P would have done, we would suggest that it also represents the implementation of the ‘best interpretation of the will and preferences’ of the person that the Committee on the Rights of Persons with Disabilities have to date held must govern steps being taken to secure the exercise of legal capacity where the person concerned is unable to express any views. In the case of Vincent Lambert (see the May Mental Capacity Report), the Committee are being invited to adopt, in effect, a blanket position that life-sustaining treatment can never be withdrawn from a person in a prolonged disorder of consciousness. It will be of huge importance to see whether the Committee maintains its previous position in the face of this invitation.
Finally, and rather bathetically, a very small point in relation to the title of the judgment. Whilst the anonymisation by way of initials means that it will be difficult easily to refer to it in future, it is very helpful to give (as MacDonald J has done in other cases) a ‘sub-heading’ to flag what the case is about.
 Since that Report was published, the French courts have ordered that life-sustaining treatment be continued pending the outcome of the Committee’s deliberations.