GUP v EUP & Anor
Summary
In GUP v EUP and UCLH NHS Foundation Trust [2024] EWCOP 3, Hayden J was concerned with a situation of a woman in her late 80s who had sustained a serious stroke. In the period following November 2023, Hayden J identified that there had been:
6. […] increasing divergence between the growing hope of the family for some meaningful recovery and the view of the clinicians that comfort and dignity ought to be the focus of EUP’s care, at what they assess to be the end of her life. Whilst these two perspectives of EUP’s medical needs have diverged, I am concerned that the treatment she has received reflects a convergence between the two. In other words, the treatment plan has an air of compromise about it, a negotiation between the family and the medical team. There may, sometimes, be a place for that, but not if the person at the centre of it becomes marginalised. P (the protected party) must always be afforded care, which is identifiably in her own best interests. The family’s views are relevant only insofar as they provide a conduit for P’s own wishes and feelings. Families, however loving and well-meaning gain no dominion over their dying and incapacitous relatives. The family’s role, which is crucial, is to promote and not subvert P’s autonomy.
From mid-November 2023, it had become impossible to provide her with nutrition, but the Trust had continued to provide her with hydration, which appeared to be a compromise reflecting the position above; a matter which troubled Hayden J considerably.
With the benefit of two external second opinions, the Trust reached the view that it was clinically inappropriate to continue to provide artificial nutrition. As Hayden J identified (at paragraph 48), GUP (EUP’s son), and his family:
were never fully on board with that plan. It is certainly the case that there was a broadly co-operative relationship with GUP but I think it was equally clear that he had not accepted the medical consensus. The same applies to his sister, HUP [w]ho has expressed strenuous resistance to the hospital’s plans at this hearing. GUP has told me that the hospital had indicated to him that they were to make an application to court to seek endorsement of their approach. I do not think this is in dispute. However, on 16th January 2024, the Trust confirmed to the family that they had been advised by their lawyers that it was not necessary for them to issue an application. The likely reasoning behind this is that the Trust considered that there was no ethical route to provide nutrition to EUP. The family disagreed and saw this as passivity, with profound consequences. They perceived an important decision having been taken, even though the decision was to take no action. They considered that the Court ought to be able to review that decision making process and identify its own evaluation of where EUP’s best interests lay. I agree with the family. A decision not to provide nutrition is every bit as serious as a decision to withdraw nutrition. Where there is conflict, these cases must be resolved by the court.
In his concluding remarks, Hayden J referred to the Serious Medical Treatment guidance he had issued in January 2020 thus:
50. Ms Dolan submits that the practice guidance, which I issued in January 2020, then as Vice President of the Court of Protection, indicates that the Trust, in circumstances such as these, should bring the case to court promptly. Whilst that document is expressly stated to be by way of guidance only, it is rarely departed from in cases of this gravity. Had the Trust followed it, and at an earlier stage, it would have greatly alleviated the stress to the family. Ms Dolan goes further in her written submissions but I do not. Neither can I imagine that the lawyers advising this Trust were unfamiliar with the guidance. It has been widely promulgated, see also [2020] EWCOP 2. Where there is conflict in these serious medical treatment cases, it is in everybody’s best interests, but most importantly P’s, to bring an application to court. That will be most efficiently achieved where it is driven by the Trust’s application. There are many and obvious reasons why it is also to the Trust’s advantage to have their treatment plans, in cases such as this, scrutinised by the court.
Comment
We note and share, Hayden J’s concern about the situation where, for the sake of compromise, the Trust found itself providing treatment for which there was no clinical rationale. From our experiences both of cases, and of sitting on clinical ethics committees, such situations are not uncommon, both in relation to incapacitated adults, and in relation to neonates. His observations are, or should be, a helpful reminder that the focus must always be kept on the interests of the patient, not (as understandable as this can be) on the interests of others.
We have significantly greater reservations about the observations about the bringing of the application.
We fully appreciate that it is not always necessarily easy to distinguish between a dispute about clinical appropriateness (including, as a subset, futility) and a dispute about whether a treatment that is in principle appropriate is nonetheless not in the best interests of the person. But we suggest that a situation where – as here – the Trust had obtained independent second opinions from two doctors is a one where that dividing line has been properly tested.
We also fully appreciate that there may well be situations in which it is prudent for a treating body to bring an application to court to get confirmation that it is acting lawfully so as (for instance) to forestall arguments after the event before an inquest. We say ‘court’ here, because we remain very doubtful that the Court of Protection is the correct forum for seeking a declaration of lawfulness in respect of a determination that a course of treatment is not clinically appropriate – rather, we suggest that the correct forum is the King’s Bench Division under Part 8 of the CPR, not least so as to avoid the slide into best interests language / analysis that (on one view) took place in Re EUP. We also have squarely in mind the Court of Appeal decision in AVS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7, which made clear that disputes about best interests where the treatment option is not on the table should not be entertained by the Court of Protection – in strong terms:
38. […] A declaration of the kind sought [i.e. that treatment was in the person’s best interests] will not force the respondent hospital to provide treatment against their clinicians' clinical judgment. To use a declaration of the court to twist the arm of some other clinician, as yet unidentified, to carry out these procedures or to put pressure upon the Secretary of State to provide a hospital where these procedures may be undertaken is an abuse of the process of the court and should not be tolerated.
39. Like the President, I have also reached the conclusion that the continuation of this litigation by permitting a lengthy hearing to be urgently arranged for numerous busy medical practitioners to be cross-examined truly would be "doomed to failure". If there are clinicians out there prepared to treat the patient then the patient will be discharged into their care and there would be no need for court intervention. If there is no-one available to undertake the necessary operation the question of whether or not it would be in the patient's best interests for that to happen is wholly academic and the process should be called to a halt here and now.
We have very considerable sympathy with the proposition that it should be the treating medical body which has responsibility for bringing applications where there is in fact a best interests decision to be made. It is undoubtedly likely to be more efficient (as Hayden J identified) in most cases. And we would also be the first to say that it is very unfortunate that the (welcome) expansion of non-means-tested legal aid to parents in serious medical treatment cases involving children was not expanded to those potentially involved in such cases in respect of incapacitated adults.
However, we suggest that it is important to recognise the limits of the points set out above. To start with, and with due diffidence, given that Hayden J was making observations about Practice Guidance he himself issued, we note that the Practice Guidance does not, in fact, address the situation that was in play here. The Practice Guidance was specifically concerned with situations where there is a dispute about the best interests of the person. This is clear from paragraph 6, which explains how, normally, s.5 MCA 2005 will provide the basis upon which treatment is provided / stopped / withheld. Section 5 expressly applies where the person carrying out the act reasonably believes that they are acting in the best interests of the individual lacking the relevant decision-making capacity. Paragraph 7 of the Practice Guidance then goes on to identify that paragraphs 8-13 “set out the circumstances in which section 5 either will not or may not provide a defence. If section 5 does not provide a defence, then an application to the Court of Protection will be required.” Paragraphs 8 and 9, which appear to have grounded the submission to Hayden J noted at paragraph 50, are therefore concerned with disputes about capacity or best interests, not about clinical appropriateness. If treating clinicians are not willing to offer a particular treatment on the grounds of clinical appropriateness, that does not become a best interests decision just by virtue of the fact that the patient lacks capacity to make their own medical treatment decisions.
We further suggest that it is going too far to propose that that Article 2 ECHR requires an application to court in every situation where a medical body is contemplating withholding or withdrawing treatment or has decided to do so. If this was the case, then every decision by a clinical body to withhold a life-saving cancer drug on the basis that the person does not fit the strict cost / benefit criteria would need to be taken by that body to court if the person (or someone on their behalf) does not agree. Or, to focus squarely in on clinical appropriateness, what about a decision not to provide clinically assisted nutrition and hydration in late stage dementia, in circumstances where NICE guidance NG97 specifically states “[d]o not routinely use enteral feeding in people living with severe dementia, unless indicated for a potentially reversible comorbidity?” We suggest that a difference of opinion with family / others close to the person about the provision of CANH in such a situation cannot itself give rise to an obligation on the part of the treating body to take the case to court.
When to bring an application to court (and who should bring it) will be likely to remain an issue that is regularly revisited. It was considered in this webinar held in Chambers on 27 February 2024 and in this blog post by Tor and Alex.
But we do suggest that it is very important that an urban myth is not allowed to develop (in the same way that it did about CANH withdrawal cases following Bland, not dispelled until 2018 in NHS Trust v Y) about what the law actually requires.
