Judge: Peter Jackson J
Citation:  EWCOP 19
In M v A Hospital Peter Jackson J (giving one of his last judgments before his elevation to the Court of Appeal) has made clear his view that there is no legal obligation upon medical practitioners to seek the sanction of the court before withdrawing clinically assisted nutrition and hydration (‘CANH’) from patients in a permanently vegetative state (‘PVS’) or minimally conscious state (‘MCS’), where all concerned are in agreement that to provide such treatment is no longer in the person’s best interests.
Peter Jackson J’s judgment has been widely misreported as relating to a right to die – it is no such thing; rather, it relates to the right not to be subject to treatment to which a person cannot consent and which is not in their best interests. It has also been misreported as relating to the withdrawal of care – again, this is wrong, as palliative care would always be provided to the individual concerned even after CANH has been withdrawn. Finally, it has also been reported as determining conclusively, subject to any potential appeal by the Official Solicitor, the question of whether or not a legal obligation exists. This is a more nuanced question, to which we return below after putting this decision in its context.
M was in what was described by Peter Jackson J as an MCS as the result of Huntingdon’s Disease. Her family, in complete agreement with the treating team at the Trust responsible for her care, believed that it was not in her best interests to continue to receive CANH. However, and as Peter Jackson J found was entirely understandably to have been the case, all those concerned felt that “an external decision” was required before CANH could be stopped. The matter was formally brought to the court by M’s mother as a challenge to a deprivation of liberty authorisation in place for M at the hospital where she was being cared for. In reality, this was a mechanism in order to ensure that non-means tested legal aid was available (a mechanism which has now been ruled out by the Court of Appeal in Briggs). As Peter Jackson J identified, the real application was for a determination “if required” that it was in M’s best interests not to continue with CANH. Unusually, but not unprecedentedly, M was not represented by the Official Solicitor as her litigation friend, but rather by her mother, and, whilst we do not address this further here, Peter Jackson J’s judgment contains some important observations as to when it is appropriate for a family member to act as P’s litigation friend in a serious medical treatment case. As will be set out further below, however, the Official Solicitor was to have a further – important – involvement in the proceedings.
On the substantive question before the court, Peter Jackson J had little difficulty in determining that it was not in M’s best interests for CANH to be continued, and indeed found that the evidence had shown that it had not been beneficial for the previous year.
Had the judgment stopped there, it is likely that it would not have aroused the widespread interest that it has – although we would like to think that his observations about the interaction between family members and medical professionals would have been picked up as a welcome corrective to the narrative portrayed in many reported cases. At paragraph 27, Peter Jackson J noted:
that the medical opinion on M’s overall best interests was to some degree influenced by (and might, in the end, be said to have been tipped by) the views of her family. There is nothing wrong with that. For obvious reasons, it is not found in many of the reported cases, which often portray doctors and families in opposite camps, but those cases are surely unrepresentative of the much greater number where a common position is reached through people listening to each other. Just as family members will naturally pay regard to the views of carers and doctors, particularly on the medical aspects of the situation, so doctors will naturally listen to the views of the family about their relative’s wider best interests. What is important is that those called upon to express a view should do so conscientiously, drawing upon their personal and professional knowledge of the individual concerned.”
Why the judgment has aroused much wider interest is as a result of what Peter Jackson J then went on to do. Until very recently, the conventional wisdom has been that an application to court is required in any case where it is proposed to withdraw CANH from a person in a PVS or MCS. As Peter Jackson J noted (at paragraph 28), this “reflected the dicta of the House of Lords in the 1993 case of Tony Bland that, until such time as a body of experience and practice was built up, good practice required a court application before withdrawal of CANH in cases of PVS.” This conventional wisdom was reflected in Practice Direction 9E to the Court of Protection Rules.
Recently, however, questions have been asked as to whether (a) the requirement to bring such cases to court is a legal requirement (as opposed to a requirement of good practice) or (b) if it is a legal requirement, it should remain so.
Earlier this year, King LJ, speaking for the Court of Appeal in Director of Legal Aid Casework & Ors v Briggs  EWCA Civ 1169, offered some (apparently unprompted) obiter observations to the effect that “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.” King LJ reached her conclusions in this regard on the basis of a detailed analysis of the MCA 2005, its accompanying regulations, Code of Practice and PD9E, but without argument or reference to her of the jurisprudence in the area.
Peter Jackson J, however, did have the benefit of detailed argument (albeit of a specific nature, as discussed further below), and reached the conclusion consistent with the obiter observations of the Court of Appeal that it was not a legal requirement on the facts of M’s case for the decision to withdraw CANH to have been taken by the court. He did so for a number of reasons. In particular, he concluded that there was no statutory obligation to bring the case to court, that the cases and materials brought to his attention did not support the proposition that a court decision was necessary as a matter of law (as opposed to a matter of practice), and, crucially, that the State’s obligation under Article 2 ECHR did not mandate court oversight as a matter of law. Importantly, he noted the anomalous position that, save for the class of PVS and MCS patients under consideration, “overwhelmingly” treatment decisions up to and including the withholding and withdrawal of life-support are taken by clinicians and families working together in accordance with recognised good practice, and that there was no suggestion that such should all be the subject of external supervision. In the circumstances, therefore, he held that:
a decision to withdraw CANH, taken in accordance with the prevailing professional guidance – currently the GMC’s Good Medical Practice guidance, the BMA guidance ‘Withholding and Withdrawing Life-prolonging Medical Treatment’ and ‘End of Life Care’ and the Royal College of Physicians’ Guidance on Prolonged Disorders of Consciousness – will be lawful and the clinicians will benefit from the protection of s.5. The court is always available where there is disagreement, or where it is felt for some other reason that an application should be made, but this will only arise in rare cases, such as Aintree.
Importantly, Peter Jackson J noted both that recognised medical standards will “doubtless evolve” (and highlighted current work in this regard) and also that every case is intensely fact specific, such that “those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.”
The conclusions set out above regarding the need for the involvement of the court were reached in specific context, which it would be wrong to gloss over. They were reached after consideration of written arguments alone and in circumstances where, as Peter Jackson J was also careful to note (at paragraph 36) that the Official Solicitor had not been formally involved. It is important to note, however, that he had specifically invited the Official Solicitor (“given his general interest in the issue and his passing involvement in the pre-proceedings stages”) to provide him with observations. The Official Solicitor responded to that invitation and provided him with a “substantial” skeleton argument, which, amongst other things “trenchantly assert[ed] that an application to court should be made in every case of proposed withdrawal of CANH, unless there is a valid advance directive” (paragraph 30).
In the circumstances, and not least given the very robust stance taken by the Official Solicitor, it seems to us clear that it is now beyond sensible argument that, where a valid advance decision to refuse treatment has been made which applies to CANH, there can be no need to apply to court. Put another way, had there been any argument to suggest that an application was required, then it is proper to presume that the Official Solicitor would have put it.
At the time of writing, however, the status of the remainder of Peter Jackson J’s conclusions is perhaps more debatable. In particular, it is unclear whether:
If the former course of action is taken, we will have to wait to see what the appellate court/courts do. If the Official Solicitor (or indeed, anyone else) adopts the latter path, it seems to us that, with respect, this is too simplistic. The question of whether an application for a determination of M’s best interests needed to be made had been put in issue by M’s mother at the very outset of the proceedings. Peter Jackson J’s judgment noted in its opening paragraph that the real application was for a request “if required” for a best interests determination (see also paragraph 30). The priority, at that stage, was to decide the question of M’s treatment; the “prior” question of the need for the proceedings then being addressed subsequently in the fashion set out above. As Peter Jackson J then went on to note at paragraph 36, “[i]t is not good enough for the court to say that, because proceedings have in fact been issued and determined, the question of whether they were necessary in the first place has thereby become moot.” Peter Jackson J, in other words, does not appear to have taken the view that he was merely expressing “gratuitous comment” (paragraph 36), but rather to be giving a judicial determination of a question put to him. In the circumstances, and whilst acknowledging that the position is more nuanced than might at first appear from some of the reporting, it seems to us that it is difficult to cast these observations as ‘mere’ obiter and – by inference – easily put to one side. Even if, strictly, the observations do not constitute part of the ratio of the case, there are obiter and there are obiter: see Megarry J in Brunner v Greenslade  Ch 993 at 1002: “A mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter.”
In the circumstances, and putting aside for one moment the fact that (as the Official Solicitor himself acknowledged in his written submissions) it is difficult to see how a ‘live’ case could ever arise on this issue, we would respectfully suggest that these observations represent the most detailed judicial attempt so far to grapple with this question, and that (if no appeal is brought) it is unlikely that another court would depart from the conclusions reached by Peter Jackson J on the basis of their forensic status alone.
The way forward
We note that at the time of writing there have been reports that the President may seek to issue “guidance” (the precise nature and status of which is as yet unclear) to clarify when cases should come to court. We should note in this context that there is no obvious route within the MCA 2005 or the Court of Protection Rules by which the President can issue guidance as to when cases should come to court, as opposed to how such cases should be addressed when they do come to court. To the extent that the guidance represents the President’s view of the relevant legal obligations, interesting questions will arise as to the status of that view vis-à-vis the conclusions of Peter Jackson J, and also as to how that view could be challenged in court if and to the extent that anyone should disagree with it.
Pending the issuing of any such guidance, and notwithstanding the view of the authors that Peter Jackson J gave the correct answer to the question asked of him, it is important to note that we deliberately emphasised the word “judicial” the concluding paragraph of the sub-section above because we should put down a marker that it seems to us that it is arguably a question that engages more than merely issues of narrow legal responsibility, and hence a question that does not fall to be answered solely by the judiciary.
Put another way, it is entirely open to us to consider that society has an interest in deciding: (1) whether we are content to leave decision-making in this regard to the collaborative non-court-based process set down by the framework of the MCA 2005; and (2) if so, whether we think that the safeguards set down in the Act as it stands are sufficient to protect all the relevant interests, above all the interests of P.
Our view is that the most important consideration is that there should be a robust framework for decision-making, whether that framework be administered outside or by the Court of Protection. Declaring an interest (on Alex’s part), this only makes more important that Parliament is given the opportunity to debate the draft Mental Capacity (Amendment) Bill proposed by the Law Commission which includes the proposals to limit the scope of the s.5 MCA 2005 defence so as to enshrine more robust safeguards in law. In the interim, the onus is on the relevant regulatory and representative bodies to ensure that (at a minimum) equivalent safeguards are implemented as a matter of practice, and we would hope that this can be achieved sooner rather than later.
 Note, Tor having been involved in the case, this note is prepared without her input.