Abertawe Bro Morgannwg University LHB v RY and CP
Judge: Hayden J
Citation:  EWHC 3256 (Fam)
In this case, Hayden J returned to a theme that has been exercising him increasingly. As he noted during exchanges with Counsel for a family member in an application for withdrawal of life-sustaining treatment from a person said to be in a PVS following severe hypoxic damage:
- […] I have been concerned in a number of cases now by the apparent readiness of the profession involved in Court of Protection cases to adjourn these difficult applications for a wide and ever-varying variety of enquiry. This is all entirely well-motivated and there is no doubt that the proper instinct to preserve the sanctity of life must always remain in clear focus when evaluating a course that may lead to the death of a patient. However, it is well established that this important principle does not exist in a vacuum.
In support of the principle that the sanctity of life is not the sole governing principle, he cited passages from Re N  EWCOP 76, Pretty v United Kingdom  35 EHRR 1, and Airedale NHS Trust v Bland  AC 789, before noting that:
- As a Judge sitting in the Court of Protection, I have experience of litigants seeking very extensive assessments and re-assessments, in a way that occurred in the Family Division in Children Act 1989 proceedings, most particularly in public law care proceedings. The reasons for both strike me as similar, namely that the decisions the Court is asked to make are of such great importance and carry such profound consequences that there is, I think, a forensic instinct to leave no stone unturned. I am bound to say however, that I sometimes feel that I am being asked to authorise a petrological survey on the upturned stone. Just as the Family Justice reforms have re-emphasised the real dangers to vulnerable children caused by avoidable delay, so to, it seems to me, practitioners in this field must recognise that delay which is not, on a true analysis, either constructive or purposeful is almost certainly damaging and thus inimical to P’s welfare.
He continued that:
- Though avoidance of delay is not a statutory imperative in the Mental Capacity Act 2005 the principle is now so deeply embedded in the law of England and Wales and across every jurisdiction of law that it should be read into Court of Protection proceedings as a facet of Article 6 and 8 ECHR. It requires to be restated that the Court of Protection Rules provide for the Court to restrict expert evidence and assessment…
He noted that he had revisited the core principles because:
- I have real misgivings whether the proposals for further assessment and inevitably further expert opinion can properly be said to be in RY’s best interests. RY, I have been told, is a deeply religious man. His family are similarly committed to their faith. Mr Sachdeva agrees that their position can be stated starkly and without nuance. They would wish RY to have life no matter how fragile or vestigial. Though others might regard their father’s life as entirely compromised or even debased they would prefer that to his death. This is a fundamental tenet of their beliefs which resonates throughout the Judeo-Christian and Islamic faiths.
- Having watched the clinicians from the Health Board in the courtroom this afternoon I had a very strong sense that they were unconvinced as to whether this proposed course was consistent with their ethical obligations to their patient. Their unease was almost palpable, even before Mr Chisholm informed me that the clinicians shared many of the concerns that I articulated during the course of exchanges with counsel.
However, in light of video evidence that had come to light which revealed a level of consciousness that was not consistent with the rest of the available clinical information, Newton J acceded with reluctance to a delay for further assessments, noting that:
- Given the scale of the hypoxic damage, the preponderant evidence suggests that any significant improvement may be rather a forlorn hope. I think RY’s family should be under no delusion as to the prospects. That ‘flicker of hope’, says the Official Solicitor, is one that should be pursued on RY’s behalf. Ultimately, I have acceded to that submission but I do so on a very particular basis and that is that the assessment process, which has been outlined in framework this afternoon, is carefully monitored and that the SMART assessment, is commenced no later than 6th December. If, at any point between today and the end of January when I anticipate this case will return to me, those treating RY feel that this delicately poised decision has shifted, so that ongoing treatment and/or assessment does not continue to be in his best interests, I spell out in clear and unambivalent terms that I regard it as the duty of the Health Board to return the case to Court expeditiously. Sympathetic though I am to the views of RY’s family and the complete integrity with which they seek to convey RY’s views to the Court, their own views and feelings must always remain subordinate to RY’s best interests, objectively assessed.
- The care plan requires to be specific, focused, choate and detailed, bearing in mind, as I have emphasised that prolongation of the investigation may be contrary here to the patient’s best interests. On this basis, and for these reasons, I am prepared to make the declarations that the parties seek today, including the necessary step of a tracheostomy which I understand, all being well, will be completed within the next twenty-four to forty-eight hours.
This case reveals a real tension between the – understandable – desire of family members (and other parties) before the Court of Protection to examine every possible avenue which might support their case, and the need both (1) to ensure that cases are determined without undue delay; and (2) not to inflict assessments on P which may not merely give rise to a delay but actively to harm their interests. Although serious medical treatment cases such as that before Hayden J fall outside the Case Management Pilot, these issues arise – albeit perhaps on a less dramatic scale – in many welfare cases, highlighting, above all, the need for robust judicial management of cases to ensure that, at each stage, a proper answer can be given as to why any particular step or assessment is being undertaken.
Hayden J’s comments about the place of sanctity of life in the making of best interests decisions in this arena also chime with the considerably more detailed analysis by Charles J in Briggs v Briggs (No 2).