Mental Capacity Case

Hillingdon Hospitals NHS Foundation Trust v IN & Ors

Poole J

The decision of Poole J in Hillingdon Hospitals NHS Foundation Trust v IN & Ors [2023] EWCOP 32 is of wider relevance for two reasons.  The first related to observations made in the course of the substantive determination of the application.  The second related to the question of anonymity.

A hospital Trust applied for a decision that continued life-sustaining treatment was not in the best interests of a man who had suffered a serious brain injury and had been in a coma for six months.  The man’s daughter and brother opposed the application, not disputing the medical analysis, but contending that he would have wanted clinically assisted nutrition and hydration to continue so that he could be kept alive as long as possible, on the basis that he was a “fighter” whose Christian faith would have led him to believe that God might perform a miracle to bring him back to consciousness and a fuller life.  Applying decisions made in the context of children, Poole J made the important observation at paragraph 34, that, even if “IN cannot experience pain, it does not follow that continued treatment is not burdensome – see King LJ in Re A (A Child) [2016] EWCA Civ 759, and Baker LJ in Parfitt v Guy’s and St Thomas’ Children’s NHS Foundation Trust [2021] EWCA Civ 362, at [61]. IN’s condition and the interventions required to keep him alive are burdens even if he is unaware of them.”  Conversely, Poole J continued, “[i]n like manner, I should also consider the wider benefits to him of continuing CANH even if he is unable to experience pleasure.”  Poole J also joined the growing number of judges who have made clear that they do not find the concept of ‘dignity’ to be of assistance – at least in isolation - noting at paragraph 36 that: “I do not find it helpful to co-opt the notion of “dignity” - to suppose that the managed withdrawal of life-sustaining treatment as opposed to continuing such treatment enhances innate human dignity. He would not be in “anguish” as his daughter has said she fears. The plan for palliative care is designed to prevent that. For some, there is dignity in a managed death, for others there is dignity in fighting for life and survival. Human dignity is a very important concept in decisions about end of life care and it is recognised and respected by application of the principles in the MCA 2005 and the authorities, and by an intense focus on IN’s best interests. However, based on the evidence I have received about IN’s character, I am sure that he would have preferred a peaceful death if only to protect his family from avoidable distress.” This was also a situation in which Poole J considered that it was not possible to ascertain IN’s own wishes and feelings, and – importantly, requiring separate consideration – that his beliefs and values may or may not have led him to discontinue CANH.   The ultimate decision was that continuation was no longer in IN’s best interests. 

In the first reported Court of Protection judgment to do so, Poole J expressly applied the approach set down (in relation to children) by the Court of Appeal in Abbasi,  noting that the decision “applies equally to the Court of Protection where [Transparency Orders] are commonly made to cover a wide range of healthcare professionals and to last ‘until further order’” (paragraph 45).  Applying the ‘intense focus’ he considered required to the Articles 8 and 10 ECHR rights engaged, Poole J reached the following conclusions (at paragraph 47):

This case has not previously been the subject of reporting. Information is not already in the public domain. The family members have expressed no wish to publicise matters in or arising from this case. However, there is an interest in such Court of Protection proceedings involving end-of-life decision-making. This is not a case where there has been adverse commentary on social media or elsewhere directed to the hospital or healthcare professionals. There are only a few healthcare professionals whose identities are relevant to the proceedings. It is important that those professionals feel enabled to carry out their functions without the fear of hostility. It is a fact that whilst some will regard it as unethical to continue CANH in a case such as this, others will regard the withdrawal of CANH as unethical and deserving of condemnation, including personal condemnation of those responsible. Of course, Judges who make these decisions are named but healthcare professionals are more commonly involved in these difficult decisions and it is important that they are able to make those decisions free from untoward interference. In the present case the Trust invites the court to discontinue the injunction against reporting in relation to the hospital and the identified clinicians at the hospital until after IN’s death. I shall direct that those parts of the injunction shall be discharged 7 days after IN’s death unless there is a further or other order of the court. The reporting restrictions in respect of IN and members of his family shall remain until further order. AN does not wish IN to be identified. MN was content to leave that decision to the Court. I am satisfied that the continued anonymisation of IN, and therefore of members of his family (to avoid jigsaw identification) will not so adversely affect the Art 10 rights of those who wish to comment or report on this case as to justify what would be a significant interference with the Art 8 rights of IN’s family were his and their names to be made public. Accordingly, the TO will remain in place until further order in relation to the identification of IN and family members. I shall delete the reference to “attendees” in the TO – it was not made clear to me who those persons were (beyond the clinicians and the family members). Dr Hanrahan, as an expert, may be named. I vary the TO accordingly.

Whilst not disagreeing with the decision reached at paragraph 47, it is perhaps important to note that Poole J may not have been on entirely firm ground in aligning himself with the assertion of Mostyn J in Re EM [2022] EWCOP 31 that transparency orders are conventional reporting restriction orders, requiring the carrying out – in each case – of the detailed balancing exercise required in the latter cases.  As Alex has explained in relation to EM, the position in relation to transparency orders made by the Court of Protection is more nuanced, as they do not involve a position where proceedings previously being held in public are being ‘shut down’ in some way.  Rather the operation of the Transparency Practice Direction relates to the application of a general provision guiding judges as to the application of the balancing exercise in circumstances where Parliament has decreed that the starting point is that the tap of publicity is off and the court is deciding whether to turn it on.  In such circumstances, the making of the ‘ordinary’ transparency order represents an implicit – and we would suggest sufficient – judicial determination that the appropriate balance remains that set out in the Practice Direction. 

That having been said, it is undoubtedly necessary to be careful before allowing a transparency order made at the beginning of proceedings simply to roll on into the future after the end of proceedings (including, as here, the death of the person) without fresh consideration.