University Hospitals of Derby and Burton NHS Foundation Trust v J (by her litigation friend, the Official Solicitor) [2019] EWCOP 16, [2019] All ER (D) 106 (May)

What are the practical implications of this case?

‘Do we need to make an application to the court or can we just get on and treat? It’s obviously in P’s best interests and everyone agrees—even the Official Solicitor and the family.’ If there was a poll among the Court of Protection Bar of the question we are most frequently asked (and most frequently late on a Friday evening) that one would win the prize. ‘Do we need a declaration?’ In An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) and another [2019] UKSC 46, [2018] All ER (D) 167 (Jul) , the issue was the withdrawal of clinically-assisted nutrition and hydration (CANH)—leading inevitably to P’s death. Re Y marked the apogee of judicial debate on the discrete issue of the withdrawal of CANH and the position is now reasonably clear following judgment and the British Medical Association/Royal College of Physicians guidance. Although the obligation on hospital trusts and clinical commissioning groups to bring an application in respect of other treatments where all parties are in agreement has evidently reduced, the threshold above which an application should be made has not been clearly defined in any case. University Hospitals of Derby and Burton NHS Foundation Trust v J is an example of a case which clearly had to be brought to court, despite the agreement of all concerned that the treatment was in P’s best interests—it is a useful reminder that there are many such cases where an application must still be made.

Background

Mrs Rushton lived a long and happy life. In her youth she worked as a nurse, married a man who adored her, and together with her husband raised four sons. After her husband passed away, “the sweetness went out of her life”, and Mrs Rushton began to display the early signs of dementia. 

On 24 July 2014, Mrs Rushton signed an Advance Decision Refusing Treatment (ADRT) stating that “on collapse, I do not wish to be resuscitated by any means. I am refusing all treatment. Even if my life is at risk as a result…this direction is to be applied”. Mrs Rushton left her ADRT in the safe-keeping of her general practitioner.

On 21 December 2015, Mrs Rushton fell and suffered a major head trauma which was “so significant that she was not expected to survive”. She defied the doctors’ expectations and lived, although did not regain consciousness. The Hospital was informed of the existence of an ADRT and so telephoned Mrs Rushton’s GP to learn the detail: as recorded in the hospital notes, the GP said that “the only ADRT in place is in regards to do not resuscitate”. Accordingly, the medical staff inserted a percutaneous endoscopic gastronomy (PEG) tube so that Mrs Rushton could receive nutrition whilst she was discharged home, albeit in the expectation that she would soon die.

However, being well-cared for by her youngest son, she lived on for almost three years in a persistent vegetative state before the question of withdrawing treatment came before the court. The question for the court was whether continuing to provide clinically assisted nutrition and hydration (‘CANH’) would be in Mrs Rushton’s best interests particularly in light of her earlier ADRT.

Dr Esegbona (on behalf of the estate of Christina Esegbona, deceased) -v- King’s College Hospital NHS Foundation Trust  [2019] EWHC 77 (QB)

Introduction

  1. When Mrs Esegbona fell ill in October 2010, requiring a tracheostomy, there was no question she needed hospital care. However, when she was ready for discharge, the Trust’s staff repeatedly ignored her express wish to have the tracheostomy removed and go home to her family.  For over three months, the Trust failed to comply with its duties under the Mental Capacity Act 2005, and instead took a ‘high-handed’ and “oppressive” approach. The Trust deliberately excluded her family from any decisions concerning her future care, moving Mrs Esegbona to a nursing home many miles away from her home and family.

  2. Had the Trust complied with its duties under the MCA, Mrs Esegbona’s wishes and feelings would have been considered: she would have had "a voice". .. her frustration and distress would have been significantly reduced”. Instead, just nine days after being moved, Mrs Esegbona died, “frightened, distressed and alone (when she should not have been)…”

  3. In January 2019, HHJ Coe QC delivered judgment. The court found clinical negligence, and awarded significant damages and aggravated damages for Mrs Esegbona’s false imprisonment. Importantly, this case demonstrates that a person can recover substantial awards if they are falsely imprisoned, their wishes ignored, and kept, not just away from home, but from any environment that would be more suitable, in circumstances which cause them considerable distress [234 – 236]. It also serves to strengthen the approach to damages taken in the deprivation of liberty HRA case of Essex County Council v RF & Ors (more commonly known as the “Fluffy” case) [2015] EWCOP 1.

On 25th July 1978 something rather remarkable happened. A baby girl was born to two doting parents. Now some days short of her 40th birthday there is nothing to indicate that she is one of the most extraordinary human beings of all time. Louise wasn’t just another baby girl in the maternity wing at Oldham General Hospital – her parents, Lesley and John Brown had battled for nearly a decade to conceive a child and then – when investigations revealed that Lesley’s fallopian tubes were blocked – nearly gave up the struggle.   But having fought against the odds for so long, their luck changed when they met Patrick Steptoe and Robert Edwards in 1976.   Steptoe and Edwards were carrying out research into artificial insemination. In 1977 they fertilised Lesley Brown’s eggs in a petri dish and then implanted her with a two and a half day old embryo.

The rest is history. Louise was the first human to be conceived using in vitro fertilisation. IVF gradually became widely available and recent estimates suggest that approximately 6 million people have been conceived worldwide with IVF in the last 40 years.

 M v ABM University Health Board [2018] UKUT 120 (AAC) (UTJ Mitchell)

Background

The appellant was a patient (‘Mr M’) detained for treatment pursuant to section 3 of the Mental Health Act 1983 since 26 March 2015. The respondent was ABM University Health Board, the responsible authority.

 The precise chronology is difficult to specify, but it is clear that over various periods of time, Mr M was covertly administered various medications to meet his complex mental and physical health needs.  It is also clear that although he posed various “management challenges” to staff caring for him, he was also at times compliant with medication.

 A decision was taken to provide Mr M with covert medication on the basis of what was said to be a best interest meeting and an assessment of Mr M’s capacity to consent to treatment, although it appears that the documents evidencing the decision and assessment were not provided to the Tribunal.  However, the covert medication regime was not consistently in place and at the time of the Tribunal, Mr M had not been receiving covert medication for some three months, a fact which was not put before the Tribunal.

The recent case of R (on the application of Conway) v Secretary of State for Justice (Humanists UK and others intervening) [2017] EWHC 2447, [2017] All ER (D) 22 (Oct) concerns a man suffering from motor neurone disease.

Mr Conway wants the option to end his life when he considers it is no longer worth living. He brought an application seeking a declaration of incompatibility in respect of s 2 of the Suicide Act 1961 (SA 1961), arguing that section is a disproportionate interference with his right to private life under Art 8 of the European Convention on Human Rights. The claimant proposed that any lawful scheme would involve safeguards such as a prognosis that the person has less than six months to live and the involvement of a High Court judge to confirm that any statutory criteria were met.

This is the most recent in a line of cases considering the relationship between Art 8 and assisted suicide or euthanasia (the difference being that the latter involves active steps to end life by a third party, usually a doctor, while the former does not). Earlier cases include Pretty [2001] UKHL 61 and (2002) 35 EHRR 1, Purdy [2009] UKHL 54 and Nicklinson [2014] UKSC 38. The European Court has considered similar cases from other countries. However, the court noted that at present only five of the 47 member states of the Council of Europe permit any form of assisted suicide.