Re AA (Withdrawal of Life-Sustaining Treatment: No Best Interests Decision)
Summary
This case concerned a young man, AA, in a prolonged disorder of consciousness, identified by the treating team as being on the border of a vegetative state/minimally conscious state-minus. His parents did not agree either with his diagnosis or prognosis. At the outset of the case, the applicant ICB sought a determination as to which of two options were in AA’s best interests.
- Transfer to one of two identified nursing homes on a palliative care pathway, with no readmission to hospital, and continuation of clinically indicated medications and CANH.
- Withdrawal of CANH at the hospital where he was being cared for, with provision of palliative care.
Matters then evolved in light of the deterioration in AA’s condition, such that the applicant ICB contended that there was no available option other than a move to palliative care at the hospital. The ICB initially sought a transfer to the High Court under the inherent jurisdiction on the basis that there was no basis to suggest that the proposed plan was in breach of duties owed to AA in negligence or of his rights under the ECHR, and no necessity for further medical evidence in light of the opinions already received. In light of considerable resistance from the Official Solicitor and AA’s parents, the ICB sought either a declaration of lawfulness under the inherent jurisdiction or a declaration of lawfulness and best interests under the MCA 2005.
Henke J made clear that she considered that the case should have been brought earlier than it was, given that AA’s parents “fundamentally do not accept and have not accepted the clinicians' opinion throughout his admission to hospital” (paragraph 35). However, given where matters now were:
I have reminded myself of s.1(5) MCA and s.4. If the court is being asked to exercise its powers under the Act, then the court is required to exercise its judgment and to determine the application in accordance with the Act by reference to all the relevant circumstances. However, in this case I find myself with no choice of available treatment options. As Moylan J put it in An NHS Trust v L & Others [2012] EWHC 4313 (Fam) at paragraph 113.
"113 [...] If there are no treatment options, then the court has no effective choice to make. This is not the same as the situation where the medical evidence is all to one effect as in the case of NHS Trust v MB and others [2006] EWHC 507 Fam"
Henke J agreed with these observations, and accepted the “well-established” principles that
i. a patient cannot require a doctor to give any particular form of treatment and nor can a court - NHS Trust v Y [2018] UKSC 46.
ii. It is an abuse of process to try to use a best interests declaration under the MCA 2005 to persuade a clinician to provide treatment where none is being offered - AVS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7.
The ICB was recorded as inviting the court to consider proceeding to make a best interests decision as Moylan J (as he then was) had done in An NHS Trust v L and Judd J had done in London North West University Healthcare NHS Trust v M [2022] EWCOP 13. Whilst not stated on the face of the judgment it appears, reading between the lines, that the ICB was not positively advancing the proposition that a best interests decision should be made. Rather, it was doing so on the basis that this was a course of action open to the court in light of the approach taken in those two cases, in both of which there was, in fact, only one option. Henke J, however, was not prepared to do so. She considered that the two cases were different:
Moylan J had heard extensive evidence over many days and that he reluctantly proceeded to make a best interests decision because all parties asked him to and no one took the no other available option point before him. In the London North West case Judd J had had the opportunity to receive and hear evidence from the treating clinician, the second opinion doctor and another who appears to be a court appointed expert who had provided a review. Having read that case with care, it seems to me that the case Judd J had before her was one where all the available evidence, including that obtained through the court process, was all to one effect.
Here, however, Henke J noted, the Official Solicitor had not pursued the instruction of an expert, because this would have been “futile,” given:
40. […] the Applicant's clear position that regardless of any further expert opinion, they were only prepared to implement the PCP they had submitted to this court. The case before me is built on the evidence provided by the clinicians and that obtained by them. I do not for one moment doubt the good intentions or integrity of the clinicians in this case. Professor Turner-Stokes in evidence was an obviously committed and caring professional who understood the gravity of her task and made her clinical judgment in accordance with her considerable expertise and conscience.
As the clinical view was that there was only one option, and the clinicians would only treat AA in accordance with that option:
40. […] This case is stark. There is only one available option before this court. The reality is that this court has no choice to make. Accordingly, I have concluded that there is no best interest decision to make here, and I do not do so.
Henke J declined then to do what the ICB actually wanted it to do, namely to make a declaration in the inherent jurisdiction that it was acting lawfully. She accepted (at paragraph 41) that she could do, but the question was whether she should. As she noted:
Clinicians are not legally obliged to seek a declaration from a court as to the lawfulness of any proposed treatment - see Re Y [2018] UKSC 46 at paragraphs 29-33. Professor Turner-Stokes gave evidence that regardless of whether or not I granted the declaration, the clinicians would continue to treat AA in accordance with their clinical judgment and implement the PCP. That begs the question: why is the declaration being sought when whether or not I grant it does not affect the outcome for AA? It appears to me that the declaration is really being sought to protect the clinicians and medical staff now and in the future from potential legal action given AA's parents fundamental disagreement with the PCP. I have considered whether I should grant the declaration sought in such circumstances. If I thought that on the ground that the declaration would make any difference to the outcome for AA then I may have been persuaded to make it. But the reality here is that the declaration will not alter anything. The clinicians will continue to treat in accordance with their clinical judgment whether or not I make the declaration. AA's parents' views, whether reasonable or not, are deeply held. In my view, granting the declaration sought will not change his parents' views nor actually how they are likely to behave to staff implementing the plan. It is purposeless.
Henke J made clear that she shared the Official Solicitor’s frustration that the court process had been rendered “nugatory.” She would have liked to permit the Official Solicitor’s application to instruct an expert to overview the clinical evidence and that obtained from other sources by the clinicians. This would have given the court “arms-length evidence which may or may not have supported the views of those treating AA” (paragraph 42). But, as she noted, this would have been futile:
unless the expert was prepared to take clinical responsibility to implement any alternative plan. The stark reality of his case is that AA is too fragile to be moved to another hospital and that those at the RHRU are clear that the only treatment plan clinically viable for AA and which they are prepared to implement is the PCP. The court has no choice and I have asked myself whether in circumstances such as these, when the court has no choice at all, it should rubber stamp the decision of others. I have decided that I should not. In coming to that decision, I should emphasize that I have the greatest respect for the clinicians in this case and the difficult decisions that they have had to take and will have to take until AAs death. They do so in accordance with their [Hippocratic] oath and to the highest of professional standards. I do not criticise them or the judgment they have made. However, the reality of this case is that the treatment decision in this case is purely a clinical decision not the court's decision. The court's approval is not required to implement it. The court is not needed to sanction the plan and the court has no further role to play in what treatment AA does or does not receive.
There was, therefore, nothing else that the court could do, and the proceedings were a “purposeless distraction from AA and the remainder of his life however long it may be” (paragraph 43).
Henke J made clear that she had in mind AA himself, and that there was no direct evidence before her as to what he would have chosen if he was not going to recover and would experience pain. His mother, she noted, thought he would, and his siblings’ views had not been ascertained:
46. When Professor Turner-Stokes was asked about a bespoke plan for AA, she told me that the PCP plan for AA would be bespoke in that it would be varied to meet his presenting clinical symptoms as and when they occurred. That is a reasonable reaction from a doctor and is a reasonable clinical view, but it is one which in my judgment does not take into account that a person is more than their clinical symptoms. The plan, however, is set. The stance of the Applicant was clear in closing. Further evidence of AA's wishes and feelings is not necessary and, in any event, would not cause them to change their mind. I remind myself that would be an abuse of process for me to try to change the clinical view in this case. I therefore do not do so. I simply note that the PCP is the only option before the court and that further evidence from family about AA's wishes and feeling will not alter it.
Shortly after the judgment was circulated to the parties, AA died; the judgment itself was not made public until the transparency order made in his case expired.
Comment
It is not entirely clear from the judgment why the application was not made earlier in AA’s case. In the subsequent costs judgment, however, Henke J declined to make an order for any costs against the ICB in favour of AA’s parents, noting that
the criticism that the Court has made both about delay in initiating proceedings and the conduct of the Trust in this case cannot be levied against the ICB. They are a separate entity. The Trust did not appear before me. The ICB wase not responsible for AA's care and treatment in the hospital. They only became involved when there was an option for care outside the hospital which it would have commissioned.
It is also, though, not entirely clear what difference that an earlier application would have made to the substantive outcome, if AA was, in fact, on a downwards trajectory, such that the clinical options (which only the clinicians themselves can determine) were in fact narrowing. That does not mean that there might not been a different flavour to the proceedings – but the reality also is that it may well have the case that AA had died before any external evidence could be obtained.
However, taking a step back, there are two critical observations of Henke J which are of wider importance:
(1) Clinicians are not legally obliged to seek a declaration from a court as to the lawfulness of any proposed treatment in respect of adults with impaired decision-making capacity. They may well be well advised to, but there is no legal obligation upon them to do so.
(2) Not only can the Court of Protection not seek to ‘magic’ up options which are not there through the lens of best interests, it is in fact an abuse of process to do.
It may be thought that these observations are not entirely easy to square with the observations of Hayden J in Re GUP discussed here, but, to the extent that they are inconsistent, the observations in the former case were obiter, whereas the observations here form part of the ratio of the decision, and were reached after full (if compressed) argument.
More broadly, however, they show that the courts and the clinicians remain engaged in a delicate dance. Alex first commented on this dance nearly a decade ago, and these cases show, to him at least, that:
(1) The rules of the game could perhaps usefully do with consideration through a restatement of the wider principles in play (not least for instance, one might think, in an updated Code of Practice for which Hayden J’s guidance on serious medical treatment was only ever meant to be a stop gap).
(2) Questions of medical decision-making, and the authority for such decision-making, are ones about which there remains a considerable degree of ambivalence. Much of my work now seems to involve digging into this sources of this ambivalence and thinking about ways in which to help think more transparently about it – and this briefing document may help at least give a framework for starting to identify some of the factors in play, to allow a better discussion.
