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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> NHS Trust v Y & Anor  EWHC 2866 (QB) (13 November 2017)
Cite as:  WLR(D) 771,  EWHC 2866 (QB),  4 WLR 222
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NHS TRUST
|- and -
|(1) MR Y
(by his Litigation Friend, the Official Solicitor)
(2) MRS Y
Mr R Gordon QC & Ms F Paterson (instructed by the Official Solicitor) for Mr Y
Ms Butler-Cole (instructed by Bindmans) for Mrs Y
Hearing dates: 10th November 2017
Crown Copyright ©
Mrs Justice O'Farrell :
"Mr [Y] has, however, been in PDOC for several months following hypoxic brain injury this indicates very severe brain damage. He does not demonstrate any clear trajectory of improvement. Therefore, even if he were to regain consciousness, he will continue to have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life."
"… despite prolonged observation in a variety of settings by a variety of people both informally, and using formal structured assessments, there has been no consistent or repeated evidence of any behaviours consistent with any awareness whatsoever. All the observations are consistent with and characteristic of those seen in people in the vegetative state, unaware of themselves and their environment…
I conclude that beyond a reasonable doubt he is currently and has been from the outset completely unaware of himself and his environment, and that he fulfils the generally accepted criteria for being in the vegetative state…
I further conclude that there are no plausible reversible causes for this condition or exacerbating this condition, and that no further investigations are needed either in relation to the underlying cause, or in relation to his level of awareness…
Consequently one can state that his level of current function is the best that he will achieve for the remainder of his life, and that there is no prospect that he will ever have any greater level of independence or ability to communicate and interact socially."
"I would certainly agree with [Professor B] that [Mr Y] suffered a very severe diffuse hypoxic brain injury, and that he is in a very low level of responsiveness with no trajectory towards recovery. So at this stage (now approaching 5 months since injury) I would agree that it is highly improbable that he will re-emerge into consciousness."
Best interests consultation
i) The matter has already been considered and determined as fit for expedition.
ii) The question that the court is being asked to determine is whether this case must go to the Court of Protection. To adjourn and transfer the case to the Court of Protection would be to refuse the Trust's claim without hearing it.
iii) It would be necessary and appropriate to transfer the case to the Court of Protection in order to determine whether the withdrawal of CANH was in Mr Y's best interests. However, this court is not being asked to determine that issue. The issue before this court is limited to the issue of law, namely, whether the withdrawal of CANH must be scrutinised and sanctioned by the Official Solicitor and/or the Court where there is no dispute between the clinicians and the family as to his best interests.
iv) Any further delay in the resolution of this matter would be contrary to Mr Y's best interests and would increase the pain and suffering of his family.
v) It is not necessary or appropriate for this court to determine the wider legal and policy issues that might arise in other cases in the absence of full and detailed argument. The terms of any declaration would have to be revised; the declaration in the Part 8 claim is too wide in that it purports to have general application and to provide exoneration from liability going beyond the scope of the issue in this case.
Therefore, I determined that the court would hear the submissions from the parties de bene esse and then decide whether to grant any, and if so what, relief or transfer the matter to the Court of Protection.
Mental Capacity Act 1985
"An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of –a. the person's age or appearance, orb. a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider –a. whether it is likely that the person will at some time have capacity in relation to the matter in question, andb. if it appears likely that he will, when that is likely to be.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable –a. the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity).b. the beliefs and values that would be likely to influence his decision if he had capacity, andc. the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of –a. anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,b. anyone engaged in caring for the person or interested in his welfare,c. any donee of a lasting power of attorney granted by the person, andd. any deputy appointed for the person by the court,as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which –a. are exercisable under a lasting power of attorney, orb. are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11) "Relevant circumstances" are those –
a. of which the person making the determination is aware, and
b. which it would be reasonable to regard as relevant.
(1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if –a. before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, andb. when doing the act, D reasonably believes –i. that P lacks capacity in relation to the matter, andii. that it will be in P's best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have incurred if P –a. had had capacity to consent in relation to the matter, andb. had consented to D's doing the act.
(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.
Relevant Codes of Practice and Practice Direction 9E
"6.18 Some treatment decisions are so serious that the court has to make them – unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them … or they have made a valid advance decision to refuse the proposed treatment … The Court of Protection must be asked to make decisions relating to the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS) …"
"8.18 Prior to the Act coming into force, the courts decided that some decisions relating to the provision of medical treatment were so serious that in each case, an application should be made to the court for a declaration that the proposed action was lawful before that action was taken. Cases involving any of the following decisions should therefore be brought before a court… decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS)."
"Cases involving any of the following decisions should be regarded as serious medical treatment for the purpose of the Rules and this practice direction, and should be brought to the court: (a) decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state…"
Lord Keith at p.859E-G:
"The decision whether or not the continued treatment and care of a PVS patient confers any benefit on him is essentially one for the practitioners in charge of his case. The question is whether any decision that it does not and that the treatment and care should therefore be discontinued should as a matter of routine be brought before the [court] for endorsement or the reverse. The view taken by the President of the Family division and the Court of Appeal was that it should, at least for the time being and until a body of experience and practice has been built up which might obviate the need for application in every case. As Sir Thomas Bingham MR said, this would be in the interests of the protection of patients, the protection of doctors, the reassurance of the patients' families and the reassurance of the public. I respectfully agree that these considerations render desirable the practice of application."
Lord Goff pp.873F-874D:
"There is much to be said for the view that an application to the court will not be needed in every case, but only in particular circumstances, such as [medical disagreement as to the diagnosis or prognosis and disagreement with the family] … However, in my opinion this is a matter which would be better kept under review by the President of the Family Division than resolved now by your Lordships' House."
Lord Lowry p.875F-876A:
"Procedurally I can see no present alternative to an application to the court such as that made in the present case. This view is reinforced for me when I reflect, against the background of your Lordships' conclusions of law, that, in the absence of an application, the doctor who proposes the cessation of life-supporting care and treatment on the ground that their continuance would not be in the patient's best interests will have reached that conclusion himself and will be judge in his own cause unless and until his chosen course of action is challenged in criminal or civil proceedings. A practical alternative may, however, be evolved through the practice of the Family Division and with the help of the Medical Ethics Committee, which has already devoted so much thought to the problem, and possibly of Parliament through legislation. It will of course be understood that the court has no power to render lawful something which without the court's sanction would have been unlawful."
"…the focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interest, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it."
And at paragraph :
"… if the clinical team are unable to reach agreement with the family or others about whether particular treatments will be in the best interests of the patient, they may of course bring the question to court in advance of those treatments being needed…"
Those observations make it clear that the lawfulness of treatment is not dependent on the court's ruling; the court can only give consent to proposed treatment where it is lawful. Further, although reference was made to the availability of an application to the court where there was disagreement with the family, Baroness Hale did not state that an application was mandatory in all cases.
"No doubt if there had been no dispute with the family about his care, there would have been no need to make an application. Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P's best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute … then it may be necessary to bring the case to court, as the authorities did in this case …"
This does not suggest that all cases concerning the withdrawal of CANH should be brought before the court. Further, it does not lay down any legal principle that such cases must be brought before the court.
"(i) 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."
"(ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA."
"… must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired."
"… considers on arguable grounds that an interference with the exercise of his (civil) rights is unlawful …"
In this case, the Official Solicitor has not identified any arguable grounds that the decision taken by the Trust is unlawful. The guidance published by the General Medical Council, the British Medical Association and the Royal College of Physicians has been followed in assessing Mr Y's condition and prognosis. A second, independent, medical opinion has been obtained. Mrs Y has obtained independent legal advice. Mr Y's family has been consulted so as to ascertain Mr Y's wishes and feelings, beliefs and values, and to establish the views of the family. Although the Official Solicitor has not carried out a full investigation into this case, there has been sufficient time for any concerns to be identified, as to the process carried out by the Trust, any doubts as to the diagnosis or prognosis, and any further investigation or consultation that might be necessary. None has been identified.