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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> PL v Sutton Clinical Commissioning Group & Anor [2017] EWCOP 22 (11 September 2017) URL: http://www.bailii.org/ew/cases/EWCOP/2017/22.html Cite as: [2017] EWCOP 22 |
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Neutral Citation Number: [2017] EWCOP 22
Case No: 12967092
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11/09/2017
Before :
THE HONOURABLE MR. JUSTICE COBB
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Between :
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PL (By her litigation friend, SL) |
Applicant |
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- and - |
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(1) Sutton Clinical Commissioning Group (2) The Royal Borough of Kingston on Thames |
Respondents |
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Katie Scott (instructed by Irwin Mitchell LLP) for the Applicant
Victoria Butler-Cole (instructed by DAC Beachcroft LLP) for the First Respondent (CCG)
The Second Respondent (Local Authority) was neither present nor represented
Hearing dates: 4 & 5 September 2017
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Judgment Approved
This judgment was delivered in public subject to reporting restrictions. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Honourable Mr. Justice Cobb :
2.
The provision of CANH to PL is clearly “life-sustaining treatment”
within the definition of the Mental Capacity
Act 2005 (‘MCA 2005’)
(section 4(11))[1].
Procedural issue
8. This application was initially brought under section 21A of the MCA 2005, principally I believe so that SL could benefit from public funding. Following the recent decision of the Court of Appeal in Director of Legal Casework & Others v Briggs [2017] EWCA Civ 1169, SL sought permission to re-constitute the application as one brought under section 15 and section 16 MCA 2005 and in compliance with Practice Direction 9E to the Court of Protection Rules 2007. I granted permission at the commencement of the final hearing for the application to proceed on this basis. I have made a corresponding amended transparency order.
9. The questions which require determination on this application are:
i) What is PL’s current condition? What is her level of consciousness or cognisance? What is her awareness of the world around her?
ii)
Does PL have the mental capacity
to make a decision about the
continuance of CANH? If she is assessed to lack
capacity
presently, is there a
prospect that she could develop the
capacity
to make that decision?
iii)
If she lacks capacity
, is it in her best interests that I should confirm
the continuing delivery of CANH? In answering this question, I should
consider:
a) Her previous stated views on life-support, and on sustaining life artificially, in the event that she is totally dependent on others, and incapable of functioning in many essential domains of her life;
b) The quality of her life at present; whether there is any or any significant enjoyment in her life; whether she experiences pain and/or distress, and if so how that is managed;
c) Her prognosis if CANH were to continue for the foreseeable future; whether there is any real prospect of recovery of any of her functions and improvement in the quality of her life;
d) The prognosis for PL if CANH were to be discontinued: what would the palliative care package include, in the event that the CANH were to be discontinued, and where would her palliative treatment optimally be delivered (i.e. would she need to move from her current residential care home?);
e) The prognosis for PL if I were to authorise the discontinuance of nutrition but not hydration;
f) The views, wishes and feelings of the family and her carers;
g) PL’s dignity;
h) The sanctity of life generally.
Core legal principles
i) The jurisdiction of the Court of Protection has been properly engaged in these circumstances: see the Code of Practice para. 5.29 - 5.36: (“where there is any doubt about the patient's best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life-sustaining treatment is in the patient's best interests” §5.36);
ii)
I can only make a decision in relation to treatment for PL if I am
satisfied that she lacks capacity
to make the relevant decision: see section
1(2), section 3 and section 4 MCA 2005;
iii)
Any decision made under the MCA 2005 for or on behalf of a person
who lacks capacity
must be made in her best interests (section 1(5) MCA 2005);
in doing so, I must take into account 'all the relevant
circumstances' (section 4(2) ibid.);
iv) The MCA 2005 specifically provides for me to make the decision on PL's behalf in relation to life-sustaining treatment (see section 16(2) and section 17 MCA 2005);
v) In making such a decision, I must not be motivated to bring about PL’s death (section 4(5) MCA 2005); the question which I should ask (as I have at §3 above) is whether it is in PL’s best interests to continue with the CANH?
vi) The burden of establishing that the discontinuance of life-sustaining treatment is in a person’s best interests lies with the person who asserts that it should be withdrawn: R(Burke) v GMC (OS Intervening) [2005] QB 424 at §213(o);
vii)
The question whether PL lacks capacity
within the meaning of the MCA
2005 is decided on the balance of probabilities (section 2(4) MCA 2005);
similarly, where I make findings of fact, as I do throughout this judgment, I
apply the same civil standard having regard to the guidance in Re B (Care
Proceedings: Standard of Proof) [2008] UKHL 35 (see Lord Hoffman at §2).
PL – her life, prior to August 2016
18. On 24 August 2016, PL suffered a serious, indeed devastating, bilateral stroke secondary to her atrial fibrillation. She was treated initially in Worthing Hospital, before moving to St. George’s Hospital, Tooting, as the stroke developed, and overwhelmed her. At St. George’s, a mechanical thrombectomy was performed, without success; she was placed in an induced coma for two weeks. Brain imaging revealed a large left hemisphere infarct[2], and a right hemisphere’s thalamic haemorrhage, with evidence of old right occipital infarct.
(i) PL’s current condition: What is her level of consciousness? What is her awareness of the external world?
22.
PL is now described as very “frail”. The stroke has rendered her
paralysed down the right side of her body, with minimal left-sided
functioning. She can turn her head, though not fully to the right side. She
has some minor left leg movement, which SL believes she uses
to signal
distress. She has some vision, but probably limited to her left eye. She
requires double-handed care and full body hoist for all transfers. She has
limited swallowing ability, and is nil by mouth; she shows no interest in
wanting to eat. She is doubly incontinent.
24. She is described in the report of a Consultant Psychiatrist who recently assessed her for depression as suffering a form of ‘locked-in syndrome’, with a “severe cognitive impairment and … most likely to suffer from severe onset of vascular dementia of sudden onset after suffering from severe right sided CVA[3] and left frontal lobe infarct”.
26. PL’s condition is not diagnosed or described by the medical experts by reference to either of the well-recognised categorisations: ‘minimally conscious state’ (MCS), or ‘vegetative state’ (VS) as those terms are defined in the PDOC[4] Guidelines. Consequently, I do not attribute to her either label. Indeed, whilst these terms are undoubtedly useful to describe the conditions of certain patients for treatment, management, care or other purposes, inevitably each patient is different; some patients will have characteristics of one condition and characteristics of another, but not classically all features within the one definition. There is, in any event within each definition, potentially a wide range of variables – i.e. there are, plainly, many degrees of consciousness (from those who are only just above vegetative to those who are bordering on full consciousness) within the broad category of ‘minimally conscious state’, a point which Baker J made (at §46) in Re M (Adult Patient)(Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653 (‘Re M’). Even the medical profession regard ‘consciousness’ as a somewhat elusive concept, and its labelling can be misleading: see Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591; [2013] 3 WLR 1299 (“Aintree”), where P was said to have “very limited” consciousness, and Peter Jackson J at first instance fairly observed that the word “minimal” was rather an unhelpful misnomer.
“She has a profound aphasia[5] both expressive and receptive and she is also dyspraxic. And that is why she cannot follow the spoken word. When you talk of doing things in a directive way she cannot do this because she is dyspraxic”.
31. I was interested to note that Dr. McCluskie considered that the ‘best case scenario’ for PL in the event that she was to make unexpected improvement in her rehabilitation would in fact be less good than the ‘best case scenario’ which was predicted and described for Mr. Briggs (who was in a MCS) on the evidence in his case: see §51 of Charles J’s ‘Overview’ in Re Briggs (Incapacitated Person)(Medical Treatment: Best Interests Decision) (No.2) [2016] EWCOP 53 [2017] 4 WLR 37 (“Briggs (No.2)”.
(ii) Capacity
questions
34.
Given my description (above) of PL’s current state, it is not at all
surprising that there is a consensus among professionals and family that PL
lacks capacity
to litigate, and to make the crucial decision about
life-sustaining treatment which is at the heart of this case. Her stroke has, in
my judgment, undoubtedly caused her a significant “impairment of, or a
disturbance in the functioning of, the mind or brain” (section 2(1) MCA 2005).
PL has a significantly reduced ability now to interpret vocal input, aswell as
having difficulty in expressive output. There is, in Dr. McCluskie’s view, evidence
of further brain damage which would contribute to her cognitive defects
“including memory, concentration, speed of processing and executive
functioning.” He adds: “it is for this reason that I do not anticipate that
she will ever have
capacity
make a decision about whether she continues to
receive parenteral nutrition and hydration”.
35.
In the circumstances, there is unsurprising unanimity of view by the
professionals, which I accept, that PL is not likely to gain capacity
to make
the decision about continuance or discontinuance of CANH. In terms of her
decision-making in the future, it is felt that the best that can be hoped for
(which is assessed as being remote) is that she may be able to make simple
choices about what to wear, or whether to visit the garden. That limited
comprehension and articulation falls far short of what would be required to
understand, retain, or
use
or
weigh
complex information about the continuance
of CANH, and communicate her decision accordingly (section 3 ibid.).
(iii)(a) Previous wishes and feelings of PL
40.
Since that time, PL experienced the decline and death of her own mother
following multiple strokes; she had said to SL at the time “I never want
anything like that”. She had experienced the death of her daughter. She had
suffered further TIAs. She had further similar conversations with her husband
and with her son. In 2016, she told SL that she would “pull out the bloody
wires myself” if she had a major stroke leaving her on life-support; SL
commented that it would not be in his mother’s nature to swear, and her use
of
an expletive in this context indicated to him, as it does to me, the strength
of her feelings on this issue. In July 2016, only weeks before she suffered
her devastating stroke, while visiting the memorial to her deceased daughter,
she asked her husband (as she had in the past) to re-assure her that she would
not be “allowed to drift” in the event of a stroke. She had made similar
comments to her sister, Mrs. M.
43.
PL’s past views represent an important feature of the case. Statute
requires me to consider “as far as is reasonably ascertainable, P's 'past and
present wishes and feelings'”, and the “beliefs and values that would be likely
to influence [her] decision if [she] had capacity
” (section 4(6)(a)).
Taking PL’s views into account, particularly as they have been forcibly and
repeatedly expressed, is a very significant aspect of making a decision in her
best interests: see also in this regard the
Mental Capacity
Act Code of
Practice at §5.32 / §5.38 / and especially §5.41[6].
45. Having heard all the evidence relevant to PL’s past and present wishes and feelings, I conclude:
i) That PL was clear that she would not want to be kept alive artificially in the event that she suffered a major stroke;
ii) While she may not have contemplated specifically that artificial life support would mean, in her case, CANH, her view remains clear and applicable to the current circumstances;
iii) That if PL could make the decision now, she would not give her consent to continuing the CANH treatment;
iv) That she would regard her current life as having no, or no real, value;
v) That this factor should carry, at least, very considerable weight.
(iii) (b) Quality of her life at present; enjoyment and distress:
(iii)(c) Prognosis if CANH continues
(iii)(d) Prognosis if CANH is discontinued
53. The inevitable consequence of discontinuance of CANH, is the acceleration of PL’s death. If CANH is to be discontinued, a palliative care package will be administered; it is proposed that this will be delivered at the Regional Hyper-Acute Rehabilitation Unit at Northwick Park Hospital, under the care of Professor Turner-Stokes. Although end of life care is ordinarily best provided in a local palliative care setting, the local options have been explored for PL’s particular situation without success. Northwick Park has considerable experience in managing end of life care for those with profound neurological disability. PL’s end of life would be managed according to the general framework set out in the Royal College of Physicians PDOC Guidance[7], and would of course be subject to constant review, with PL being administered sedation and analgesia as required.
54. Counselling and support will be offered to PL’s family.
55. It is envisaged that a bed will be available within 2-4 weeks. Death is likely to occur within 2-3 weeks of admission[8].
(iii)(e) Discontinuance of nutrition but not hydration
(iii)(f) Views of the family
“At the moment Mum’s life is what she would consider to be her absolute worst nightmare. It is the last way she would want to live and spend the end of her life – physically not able to do anything, and not able to speak. She will be finding it very frustrating and difficult. I believe she feels imprisoned in her room and it must be horrific for her given her personality and how she lived her life.”
“[PL] needs to be allowed to pass away peacefully, and to end her suffering, and it would be a great release to me and the rest of the family. She faces several years of being on the PEG, and I cannot imagine what she would be thinking”.
(iii)(g) Dignity
64.
SL felt that PL would be distressed, embarrassed and “humiliated” by her
current physical and mental
state – her total reliance on third party care
(often involving two carers), her double incontinence, her poor swallowing
ability causing her to drool, her lack of any effective speech, and for someone
with sporting ability throughout her life, her extremely limited physical
movement. Mrs. M, her sister, observed that she believed that PL’s occasional
distress was provoked by her awareness that people she knows, and of whom she
is fond, are seeing her in her current undignified (as she would perceive it)
state.
(iii)(h) Sanctity of life
66. There is a very strong but not absolute presumption that it is in the best interests of a person to stay alive – “a profound respect for the sanctity of human life is embedded in our law and our moral philosophy” (Airedale NHS Trust v Bland [1993] AC 789 at 808 (“Bland”), and see also Munby J as he then was in R(Burke) v GMC (OS Intervening) [2005] QB 424 at 213(o)). Baker J in Re M referred to the sanctity of life as being of “the most profound importance”, carrying “very great weight” in any balancing exercise, and on the facts of that case it was indeed “decisive” (§249).
“First, it is established that the principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so: see Schloendorff v. Society of New York Hospital (1914) 105 N.E. 92, 93, per Cardozo J.; S. v. McC. (orse S.) and M. (D.S. Intervener); W. v. W. [1972] A.C. 24, 43, per Lord Reid; and Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882, per Lord Scarman. To this extent, the principle of the sanctity of human life must yield to the principle of self-determination (see ante, pp. 826H–827A, per Hoffmann L.J.), …. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B. v. Hôtel-Dieu de Québec (1992) 86 D.L.R. (4th) 385. Moreover, the same principle applies where the patient's refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred: see, e.g., In re T. (Adult: Refusal of Treatment) [1993] Fam 95”. (emphasis by underlining added)
69. In M v Mrs N & others [2015] EWCOP 76, Hayden J observed in relation to sections 24-26 MCA 2005 at §32 that:
“the most significant impact of these provisions [sections 24-26 MCA 2005] is that they illustrate that the presumption of life, predicated on what is often referred to as the 'sanctity of life' or the 'intrinsic value of life', can be rebutted (pursuant to statute) on the basis of a competent adult's cogently expressed wish. It follows, to my mind, by parity of analysis, that the importance of the wishes and feelings of an incapacitated adult, communicated to the court via family or friends but with similar cogency and authenticity, are to be afforded no less significance than those of the capacitous”. (emphasis by underlining added)
This point was forcibly repeated in the judgment of Charles J in Briggs (No.2); I particularly draw attention to his ‘Overview’ at §11, and then the ‘reasoning’ at §62:
“… when the magnetic
factors engage the fundamental and intensely personal competing principles of
the sanctity of life and of self-determination which an individual with
capacity
can lawfully resolve and determine by giving or refusing consent to
available treatment regimes: i) the decision maker and so a judge must be
wary of giving weight to what he thinks is prudent or what he would want for
himself or his family, or what he thinks most people would or should want, and ii)
if the decision that P would have made, and so their wishes on such an
intensely personal issue can be ascertained with sufficient certainty it should
generally prevail over the very strong presumption in favour of preserving life.”
(emphasis by underlining added)
The best interests’ decision
70. In making this crucial decision I have maintained focus on the distinct and individual facts of PL’s situation, and have rigorously applied the statutory criterion of ‘best interests’. I have come to know PL, through the evidence, as an “individual, with [her] own values, likes and dislikes” (Aintree §26), and I have sought to reflect in my ultimate decision what I believe to be in her best interests “in a holistic way”.
75.
I bear in mind the likely futility in seeking to achieve any greater
degree of rehabilitation for PL; the moment at which improvement in any domain
of her functioning could be expected has almost certainly passed, and probably
some months ago. It is revealing that (as I mentioned above §31) even if she
were to make any improvement in her condition, her ‘best case scenario’ would
be less good than that forecast for Mr. Briggs. I weigh
in the balance that a
life which continues to depend on CANH is likely to involve at least minor
complications for PL (i.e. further hospital admission for replacement PEG under
sedation, bed sores, risk of aspiration, skin infections) and is likely to end
by PL suffering a further stroke, developing pneumonia or a fulminating
illness; she is very ‘frail’ as it is. The palliative care plan to follow the
discontinuance of CANH has, in my judgment, been carefully thought through, and
appears to me to afford PL the dignity for which she would crave, and a passing
which involves the minimum of distress. If life-sustaining treatment is to be
withdrawn, I am satisfied, having heard Professor Turner-Stokes’ evidence, that
both nutrition and hydration should be discontinued.
76.
I am conscious that in making the decision in relation to PL, I must not
apply substituted judgment, even though there is a “strong element” of
substituted judgment in the best interests’ test. The Supreme Court in Aintree
emphasised that while the court can, indeed should, accept that the preferences
of the person concerned are an important component in deciding where her best
interests lie, it is still a "best interests" test; see §24 of Aintree.
As indicated above, Charles J in Briggs No.2 attached particular,
even decisive, importance to the views of P, making the powerful point that
someone with capacity
could, through advance decision, displace the ordinary expectation
of treatment in order to preserve life. This followed Lord Goff’s comments in Bland
to which I have also referred (§68 above: “a patient of sound mind may, if
properly informed, require that life support should be discontinued”). On these
facts, as I have made clear, I am satisfied that PL made her views about
life-sustaining treatment well-known to her family and friends; I have accepted
their evidence, and further accept that her views apply to her current
situation. Had PL’s views been specific to the provision of CANH, I
would probably have regarded them as decisive of this application; as it is,
her views
weigh
heavily in the balance.
Deprivation of liberty: Northwick Park
79. I turn briefly to consider PL’s move to Northwick Park and specifically the issue of her liberty once there. My provisional view is that no deprivation of liberty authorisation will be required in the circumstances which will then obtain: she will be in a state of very low cognition and possibly consciousness, receiving palliative care, as her life ebbs away. Professor Turner-Stokes described a process wherein she is placed in a coma-like state to anaesthetise her from any distress associated with the discontinuance of treatment. In this context, it seems to me that the answer lies in the judgment of the Court of Appeal in Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31, noting what Arden LJ said at §99:
“In the case of a patient in intensive care, the true cause of their not being free to leave is their underlying illness, which was the reason why they were taken into intensive care. The person may have been rendered unresponsive by reason of treatment they have received, such as sedation, but, while that treatment is an immediate cause, it is not the real cause. The real cause is their illness, a matter for which (in the absent of special circumstances) the state is not responsible.”
This was a point which was accepted and developed in Director of Legal Casework & Others v Briggs by King LJ at §106:
“Ferreira confirms
what I myself would regard as an obvious point, namely that the question of
deprivation of liberty does not arise where a person who lacks capacity is so
unwell that they are at risk of dying if they were anywhere other than in
hospital and therefore, by virtue of their physical condition, they are unable
to leave the hospital.”
Publication of judgment
[1] See Lord Goff in Airedale NHS Trust v Bland [1993] AC 789 at p.870A: “There is overwhelming evidence that, in the medical profession, artificial feeding is regarded as a form of medical treatment; and even if it is not strictly medical treatment, it must form part of the medical care of the patient. Indeed, the function of artificial feeding in the case of Anthony, by means of a nasogastric tube, is to provide a form of life support analogous to that provided by a ventilator which artificially breathes air in and out of the lungs of a patient incapable of breathing normally, thereby enabling oxygen to reach the bloodstream”.
[2] Area of dead tissue resulting from failure of blood supply.
[3] Cerebral Vascular Accident (stroke)
[4] Prolonged Disorder of Consciousness
[5] Caused by damage to parts of the brain responsible for understanding and using language
[6] “The person may have held strong views in the past which could have a bearing on the decision now to be made. All reasonable efforts must be made to find out whether the person has expressed views in the past that will shape the decision to be made. This could have been through verbal communication, writing, behaviour or habits, or recorded in any other way (for example, home videos or audiotapes)” Code of Practice §5.41.
[7] The principles set out in the palliative care regimen in the guidelines are not specific to PDOC patients.
[8] See Postscript at §83 below.