The Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust and Dorset Healthcare University NHS Foundation Trust and SE (by her litigation friend, the Official Solicitor) [2018] EWCOP 45

When incapable patients require life saving surgery against their wishes, judges of the Court of Protection are readily available to provide best interests declarations at short notice. However, making such life and death decisions under pressure will never be the preferable approach. As this recent case shows, the court will look disapprovingly on NHS Trusts who leave such applications to the very last minute. All NHS Trusts should ensure their staff understand the correct procedural routes to approach the court and that these are used before a difficult case has become an emergency.

Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG and another [2019] EWCOP 21

What are the practical implications of this case?

‘The Lord giveth, and the Lord taketh away’ (Job 1:21). If this phrase reflects the patient’s (P) views on life, the Court of Protection will need to take it into consideration, as should the treating hospital prior to bringing an application for withdrawal of life-sustaining treatment. In this case, the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the Trust) sought to withdraw endo-tracheal intubation, but the same principles would apply to withdrawal of clinically-assisted nutrition and hydration (CANH).

The recent case of Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG and another confirms that the focus of any decision to withdraw CANH must remain firmly on the individual at the heart of the case, and on their wishes, views and beliefs.

The issue in this case was whether continuation of intubation was in the best interests of P. Withdrawal of treatment would certainly lead to P’s death. The Trust argued that given the medical evidence, there was no benefit in continuing treatment except that P would remain alive.

On 16 July 2019, Mr Justice Hayden, the Vice President of the Court of Protection, handed down his judgment in the case of LB Tower Hamlets v NB & AU [2019] EWCOP 27 which considered the test for capacity to consent to sexual relations. 

Why is this judgment significant?

The case considered whether ‘the test’ could and should be nuanced to take account of the particular circumstances of P as opposed to simply being issue or act specific. Such an approach could be viewed as a development from previous authorities; including the recent Court of Appeal decision of B v A Local Authority [2019] EWCA Civ 913.

The very clear message from this judgment is that it is essential to consider capacity to consent to sexual relations (and indeed when assessing P’s capacity to make decisions in all areas of life) based on the full facts of P’s situation, and with an awareness that a conclusion that P lacks capacity will be an interference with their rights.

The court did not make any conclusions as to whether NB had, or lacked capacity to consent to sexual relations, and it may be that a final judgment will be handed down in due course if the Local Authority undertake a reassessment of NB’s capacity in the light of the judgment.

Williams J approves plan for covert sedation and C-section of incapacitous 25 year old

The best laid plans …

In NHS Trust v JP [2019] EWCOP 23[1], in a decision which emphasises the importance of an overall evaluation of best interests rather than placing undue focus on any one of several important factors, Williams J made declarations that a pregnant woman with a learning disability lacked capacity to make decisions about her obstetric care and the delivery of her baby and that, notwithstanding her wish to have a natural delivery, it was in her best interests to undergo a caesarean section, with restraint and covertly administered sedation if required, because of her perceived inability to cope with a natural delivery.

In the event, JP went into labour spontaneously the day after the hearing, and delivered a healthy baby naturally at the hospital, with no restraint or sedation being required. The fact that JP confounded the expectations of the clinicians, the lawyers and the court does not, of course, mean either that the application was ill-founded or that the court’s decision was wrong, but as the judge commented in a postscript to his judgment: “The capacity for individuals to confound judges’ assessments is a reminder (to me at least) of the gap between probabilities and actuality.”

 

“The efficacy of the MCA is dependent upon getting the balance right between empowering and protecting the incapacitous”

In the matter of Domenica Lawson [2019] EWCOP 22

https://www.bailii.org/ew/cases/EWCOP/2019/22.html

David Lawson

Autonomy and protection are the two principles at the heart of the MCA. One of the many ways they push up against each other is in determining the role that families should take in making decisions about the welfare of their adult children. For any particular decision we can well see that objective decision making by engaged professionals may lead to a better outcome where there is proper respect afforded to P’s wishes and feelings as part of a full best interests consultation. But professionals can fall short of that exercise and too easily discount P’s wishes or the views of those who know him/her best. Can professionals have the same long term role as family – and even if they could, does the state any longer have the staff or the budgets to be engaged in someone’s life over the longer term? If not, is a personal welfare deputy the answer?

Section 16 (4) MCA tells us that a decision of the court should be preferred to a decision of a deputy and that the powers of a deputy should be as limited in scope “as is reasonably practicable in the circumstances”.

B v. A Local Authority [2019] EWCA Civ 913

What should assessors and the courts do where someone appears to have capacity in some areas of decision-making but to lack capacity in related areas?

A well-known problem

This conundrum is well known and hard to resolve.  It most often arises where an individual has capacity to consent to sexual relations but lacks capacity to make decisions about contact.  Sexual capacity one of the lowest hurdles to jump because for people of full capacity that decision is often “visceral rather than cerebral, owing more to instinct and emotion than to analysis” (In re: M (an adult) (capacity: consent to sexual relations) [2014] 3 WLR 409 para 80: https://www.bailii.org/ew/cases/EWCA/Civ/2014/37.html).  A decision about contact is considered to require more analysis and the bar is accordingly higher.  What happens where someone has capacity to consent to sexual relations but not to make decisions about contact with their preferred partner?

The problem received intense press scrutiny last year in a well publicised case before Hayden J in which a young woman was found to have capacity to consent to have sex and to marry, but to lack capacity to make decisions about contact (Manchester City Council Legal Services v LC & Anor [2018] EWCOP 30: https://www.bailii.org/ew/cases/EWCOP/2018/30.html). In that case, Hayden J did not have to resolve the profound question ‘whether’, as he elegantly put it, “the MCA, by collateral declarations, is apt to limit the autonomy of individuals in spheres where they are capacitous”, but said that any such case should be heard by a High Court judge.