Judge: Court of Appeal (Arden, Sharp and Peter Jackson LJJ)
Citation:  EWCA Civ 1067
The small body of appellate level jurisdiction on the MCA has been added to in this case, concerning the continued provision of clinically assisted nutrition and hydration (CANH) via a nasogastric (NG) tube to an elderly man with end stage dementia. The question that had been before Parker J had been whether, if and when he was discharged home from hospital, it would be in his best interests for him to be discharged with an NG tube in place (as his family contended), or whether the NG tube should no longer be maintained upon discharge (the position of the Trust and the Official Solicitor on his behalf). Parker J endorsed the position of the Trust/Official Solicitor; the man’s family sought permission to appeal.
Refusing permission to appeal, the Court of Appeal emphasised the high hurdle for challenging a decision made at first instance as to best interests, especially where the judge has directed themselves correctly as to the law. Both Sharp and Peter Jackson LJJ (the latter delivering his first Court of Appeal judgment in this area) also made interesting observations about the place of wishes and feelings in best interests decision-making especially where – as here – there was no reliable evidence as to what the individual in question might have done. Peter Jackson LJ noted that:
[t]he Law Commission’s recent review of the law relating to Mental Capacity and Deprivation of Liberty Safeguards recommends a legislative addition to s.4(6), so that decision-makers should ‘give particular weight to any wishes or feelings ascertained’. In its response on 14 March 2018, the Government accepted this recommendation, noting that the principle of taking account of an individual’s wishes and feelings is very important and already represents good practice.
Peter Jackson LJ made two important – wider – observations about best interests in the context of serious medical treatment observations. The first was to record that Counsel for the appellant had been “wise” to abandon a contention that “above a ‘minimally conscious state’ the sanctity of life should absolutely prevail regardless of other balance sheet considerations, unless there is very clear and cogent evidence that P himself would have wished to have CANH withdrawn…” Rather, Peter Jackson LJ noted at para 96:
The framework for the assessment of best interests is a universal framework, regardless of diagnosis, and attempts to load the scales in this manner should be firmly resisted.
Further, Peter Jackson LJ emphasised that in considering serious medical treatment decisions, the Court of Protection:
must have the realistic treatment options clearly in mind. There is no purpose in deciding whether a particular option is in the best interests of the patient if it is not in fact known to be available. In RW’s case, there is considerable uncertainty as to whether any hospital would re-intubate him after discharge from hospital, and that to my mind was a matter that the judge would have needed to further investigate if she had been minded to conclude that the NG tube should be maintained.”
Finally, the court also had cause to consider the question of transparency. Although the Trust had at one stage been anonymised, agreement had then been reached that it could be named; the contentious issue before Parker J had been whether the family, RW and the clinicians should be named. The family sought to contend that RW was in a similar position to Manuela Sykes, as a campaigner who would have wanted his name to be made public. Parker J held that none of these individuals should be named. Before the Court of Appeal, the outstanding challenge was to her decision as regards RW.
Rejecting the challenge, Sharp LJ made clear that the threshold for interfering in the judge’s decision was a high one: “i.e., where a first instance judge had “erred in principle or reached a conclusion which was plainly wrong, that is, one outside the ambit of conclusions which a judge could reasonably reach: see Browne v Associated Newspapers Ltd  3 WLR 289 at paragraph 45 and JIH v New Group Newspapers Ltd at para 26” (para 74). She further made clear that she agreed with Peter Jackson LJ’s observations (at paras 98-99) that:
In addition to the points of law recorded above, Sharp LJ’s judgment contained a useful discussion (at paras 23-31, by reference, in particular, to the evidence of the independent expert geriatrician) of good medical practice in the context of end stage dementia.
It is rare for a challenge to be brought to a first instance judgment on best interests on the basis that the judge was simply wrong. This judgment – as with Aintree – makes clear why: the appellate courts are extremely reluctant to interfere in the evaluative process undertaken by first instance judges. Indeed, this judgment is unusual because it is so detailed in its explanation as to why permission was being refused; the Court of Appeal was, in reality, using the opportunity to emphasise the general points addressed above, hence why they gave permission (at para 82) for it to be cited in future cases.
 Katie being involved in the case, she did not contribute to this note.