An NHS Foundation Trust v AB

The issue in this case was whether, as the trust asserted, AB lacked capacity to make decisions about treatment relating to anorexia nervosa. She had suffered from this condition since the age of 13 and was now 28. All treatment, including nasogastric tube feeding which was the only life-prolonging treatment now on offer, had failed, and her weight of just under 26 kg (a body mass index of 9.7) was incompatible with life. Tube feeding now would cause her enormous trauma, put her at significant physical risk and could itself be fatal. The court found that AB’s anorexia was so chronic and severe that any decision she made about food, calories or weight gain could not be considered capacitous. The court also agreed that it was not in AB’s best interests to undergo further tube feeding, with or without restraint. AB died on 23 August 2020, before her application for permission to appeal the capacity decision was listed.

Avon and Wiltshire Mental Health Partnership & North Bristol NHS Trust v WA & Ors [2020] EWCOP 37

Introduction

This application concerned WA, a Palestinian refugee, who believes he was born on 29 December 1994, and who was therefore 25 years old. WA is a patient at Southmead Hospital, Bristol, having been admitted due to malnourishment. WA suffers from post-traumatic stress disorder and depression as a consequence of extreme physical and sexual abuse suffered during a ‘disastrous’ foster placement in Italy between his flight from Palestine, where he had suffered sustained abuse from members of Hamas, and his arrival in the UK in 2009.  Since his admission, WA has intermittently refused nutrition and hydration via a naso-gastric (‘NG’) tube after the Home Office accepted age assessments concluding that he was born 6 years earlier.

The age dispute did not affect WA’s right to live in the UK. On arrival in the UK, he was placed with foster carers with whom he still lives, a member of a ‘close and supportive family.’ WA claimed asylum and was (ultimately) granted indefinite leave to remain in 2019. The dispute has caused WA significant bureaucratic difficulties (for example, when he filled out completed forms, including one to volunteer at the Nightingale Hospital), but the main issue for WA was his clear belief that the Home Office stripped him of his identity, dignity, and his connection with his deceased parents and heritage.

‘For WA the removal of his date of birth is perceived as a fundamental violation of his own rights and an assault on his identity. As a prisoner in Palestine and a victim of physical and sexual abuse in Italy, WA experienced the complete negation of his autonomy at a stage in his childhood and adolescence where he might otherwise have started to explore it. Having listened to him, his parents, the psychiatrists and psychologists, during the course of this hearing, it is clear that WA experienced the change of his date of birth as effectively abusive.’ [6]

There are ongoing parallel proceedings in the administrative court to judicially review the decision of the Home Office not to change the date of WA’s birth on his biometric records. Feeling ‘hopeless,’ WA began to refuse to eat and drink.  He was eventually admitted to Southmead hospital, where he intermittently accepted IV fluids, some minimal foods, and an NG tube.  He was detained under section 3 MHA 1983 for a month, but had been discharged for a month by the time of the hearing.  The Vice President of the Court of Protection, Hayden J, found that his refusal to eat was not in any way a ‘protest’ and that ‘it would be entirely wrong to describe his actions as being on “hunger strike”’ [65].  Very sadly, he found that WA had ‘all but given up’ hope of the Home Office accepting the date of birth which his grandmother told him was his and which is such an integral part of his identity.

On 1 July 2020m WA’s weight was 47.7kg and his BMI was a precarious 14.7kg/m2.  Since 16 June 2020, he had agreed to try to take some food by mouth with additional nutritional support by NG tube and IV fluids, but NG tube feeding was necessary to ensure a nutritional intake sufficient to sustain life.  The risk of death would increase substantially as his body mass index fell. Dr R informed the court that death could occur suddenly through organ failure.

An NHS Foundation Trust v MC  [2020] EWCOP 33 (judgment here)  

Many may be surprised to discover that the question of whether an incapacitous person should undergo an invasive medical procedure that is of no therapeutic benefit to herself, but which is likely to be of benefit to a third party, has never previously been determined by the Court of Protection.   Indeed, it seems the last time any court considered a similar matter was so long ago that one Mr James Munby QC was then instructed as counsel to the Official Solicitor.[1]

Nowadays,[2] altruistic tissue donation by a live donor is regulated by the Human Tissue Authority (HTA) which holds the statutory responsibility for giving authorisation for the procedure where the donor is a child or an adult who lacks capacity.[3]  It is an offence to remove transplantable material from an incapable living person unless the HTA has determined that there is valid consent to the procedure and that no reward has been given.[4]   In the case of donation by a child[5] the HTA see no need to bring the matter before a court, as consent to the procedure can be given by a parent.[6] However, in the case of an incapacitous adult, if no one holds an LPA in respect of health and welfare matters or there is no Court Appointed Deputy, that consent can only be given by a judge of the Court of Protection. 

It was against that background that the case of An NHS Trust v MC, came before Mr Justice Cohen.

Mental capacity to consent to sexual relations is a topic which has plagued the Court of Protection for over a decade. Whether capacity is “person-specific”, “issue-specific”, “status-specific”, or “act-specific”, the case law has been difficult to penetrate at best.

The recent Court of Appeal case of Re JB (Capacity: Sexual Relations) [2020] EWCA Civ 735 seeks to wade through the muck.

The facts

This case concerns a 36-year-old man (“JB”) with a diagnosis of autistic spectrum disorder who wants to date and have sexual relations with women. He lives in supported living, partly due to his history of behaving inappropriately towards women. Evidence provided to the court at first instance suggested that JB has capacity to consent to sexual relations according to the test as generally understood (because he understands the mechanics of the act and the basic risks involved). JB did not, however, understand the concept of ensuring that his intended partners also consented.  The factual matrix articulates in very stark terms a situation with which some Court of Protection practitioners will be familiar.

Barnsley Hospital NHS Foundation Trust  -v-  MSP [2020] EWCOP 26    Judgment 3 June 2020  here

Whatever the media headlines, this is not a case about choosing to die, it is about an adult’s capacity to shape and control the end of his life. This is an important facet of personal autonomy which requires to be guarded every bit as jealously for the incapacitous as for the capacitous[47].

In a thoughtful and sensitive judgment, the Vice President of the Court of Protection has emphasised again how the principle of sanctity of life may give way to the right of self-determination; and how P’s best interests may be best served by giving effect to what the patient would choose for themselves were they able to do so, even if that choice means death.

The issue

MSP, a man in his thirties, was heavily sedated in ICU following abdominal surgery to insert a stoma.  He was ventilated and receiving total parenteral nutrition.[1]  MSP had experienced serious gastrointestinal problems for a decade and had written an “Advanced Directive” spelling out the terms on which he did – and did not – wish for medical treatment to prolong his life.  With the need for a stoma now permanent, and the prospect of an equally permanent need for artificial nutrition and hydration, the question for the court was whether it was in MSP’s best interests to continue to receive such treatment.

Testamentary capacity and Lord Templeman’s will

Introduction

On 19 March 2020, Mr Justice Fancourt handed down judgment in the matter of Re Baron Templeman of White Lackington (Deceased)[2020] EWHC 632 (Ch). The case concerned the validity of the last will of Lord Templeman, who sat in the House of Lords from 1982 to 1994. No post about Lord Templeman would be complete without reference to his forthright and uncompromising manner. One of the many accounts of his dealings with Counsel included a case where he had been characteristically robust with Leading Counsel. Having concluded with the Leader he asked whether Junior Counsel wished to make any submissions. ‘Not without a helmet my Lord’ came the reply.

Lord Templeman died in 2014 and the sole issue in the case was whether he had testamentary capacity when he executed his last will in 2008, 6 years before. The 2008 will was neither witnessed nor approved by a medical practitioner.

The claimants (the stepdaughters of Lord Templeman’s late wife) sought to propound the 2008 will, whereas the first and second defendants (the younger son and daughter-in-law of Lord Templeman) contended that it was invalid.

The ‘golden rule’ places a requirement on a solicitor or will writer to assess whether the testator has testamentary capacity, and if necessary, to obtain medical evidence to support this. Incredibly (and in an ironic twist), the development of the golden rule was advanced by Lord Templeman himself in Kenward v Adams ChD 29 November 1975, and Re Simpson [1977] 121 SJ 224 where he determined that ‘… the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings’.

As stated by Mr Justice Fancourt at [116] it is ‘commonplace that people who are able dispassionately to give good advice to others do not always follow such advice themselves, or believe themselves to be in need of it’.