Update to para 5.35, page 160: Costs

In MR v SR and Bury Clinical Commissioning Group [2016] EWCOP 54[1], a rare costs award has been made in a medical case in the Court of Protection. The substantive application in this case was brought by SR’s daughter, MR, in the face of the Clinical Commissioning Group’s (‘CCG’) failure to do so. The CCG opposed the application and maintained its opposition until the Official Solicitor changed his position, after the first day of evidence. The parties then agreed that the application should be granted but Hayden J considered it necessary to hear a further day’s evidence from the three instructed experts before reaching his conclusion. MR sought her costs of bringing the application.

If you will forgive us a little self-promotion, we are very grateful for the positive reviews so far garnered by the 3rd edition.

Alex Ruck-Keene, on his fantastic Mental Capacity Law and Policy blog, referred to our publication as “the authoritative practitioner text for medical treatment cases”. He went on to note that:

The ‘process of dying’: update to main text para 15.25, fn2, page 473

NICE guidance (2017) covering the ‘Care of dying adults in the last days of life’ bit.ly/2obBMrl identifies four key elements:

  • ‘Adults who have signs and symptoms that suggest they may be in the last days of life are monitored for further changes to help determine if they are nearing death, stabilising or recovering.’
  • ‘Adults in the last days of life, and the people important to them, are given opportunities to discuss, develop and review an individualised care plan.’
  • ‘Adults in the last days of life who are likely to need symptom control are prescribed anticipatory medicines with individualised indications for use, dosage and route of administration.
  • ‘Adults in the last days of life have their hydration status assessed daily, and have a discussion about the risks and benefits of hydration options’

Best interests: the medical issues; update to main text para 3.26, page 80

A doctor cannot be compelled to treat someone.[17] A court can only consent to treatment to which the patient themselves could have consented.  Subject to an administrative court challenge,[18] the court cannot compel a Trust to offer a different treatment to a patient, even if the court concludes such a treatment would be the best option for the patient. The Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [19] stated that:

Update to main text para 13.1, page 376:  Introduction

There have been significant developments in this area in recent months.

The most important is Briggs: a policeman and Gulf War veteran, injured in a traffic accident, remained in a minimally conscious state; his wife brought an application seeking withdrawal of clinically assisted artificial nutrition and hydration. Charles J’s first judgment[1] held that Mrs Briggs was entitled to bring her application for withdrawal under s21A of the Mental Capacity Act 2005.  This conclusion may have far reaching consequences for both s21A applications and serious medical treatment cases where a standard authorisation is in place. The judgment is currently under appeal, and dealt with in an update on chapter 5. In the later substantive judgment[2], Charles J granted Mrs Briggs’ application, applying the best interest test to conclude that had Mr Briggs been able to decide the matter for himself, he would not have consented to receive continued treatment by clinically assisted artificial nutrition and hydration.

Update to main text para 13.11, page 399

Mr Briggs[1] was agreed to be in a minimally conscious state; he was clinically stable and not in need of any invasive treatment. His treating team believed that he should be moved to a rehabilitation centre, where he could be monitored and potentially progress to a higher level of consciousness. His family felt that he should be transferred to a hospice, no longer provided with CANH, and allowed to die as peacefully and painlessly as possible.