GUP v EUP and UCLH NHS Foundation Trust  EWCOP (25 January 2024)
Cases involving the withdrawal or withholding of life sustaining treatment can be heartrending for all involved, whatever their role. Such cases will always be uniquely and exceptionally deeply harrowing for P’s family and loved ones.
For any person to become embroiled in conflict with professionals as your loved one is dying must add an unimaginable additional burden to one’s grief. That burden will be far heavier when that family member is also required to issue court proceedings in order to bring the case before a CoP judge, particularly if having to do so without the benefit of professional advice. For an inexperienced lay person filing in the necessary COP1 and COP3 and COP24 forms and navigating the procedural labyrinth of making an emergency CoP application, in order to get their case before a judge to be heard, is an enormous challenge.
In this latest serious medical treatment end of life case the Official Solicitor deprecated the family having been left to bring the case to court themselves, after the Trust had initially indicated it would do so but subsequently concluded it was not necessary. The Official Solicitor made an entreaty that all health providers involved in a dispute regarding potentially life prolonging treatment abide by the CoP Practice Guidance  EWCOP 2 and promptly bring the application themselves, rather than leaving unrepresented, inexperienced and often distressed family members (who will frequently not be eligible for public funding) to make their own application.
An elderly woman had suffered a massive stroke in mid-November 2023, leaving her with a profound disorder of consciousness and, in her doctors’ view, no hope of recovery. When her naso-gastric (or NG) feeding tube dislodged in mid-December it could not be replaced despite concerted efforts over many days (that were causing her distress). The clinical team considered further attempts to re-insert the NG tube were futile and alternative placement of a percutaneous gastrostomy tube (or PEG) or a total parenteral nutrition (or TPN) line in a major vessel were contra-indicated given her incredibly poor prognosis. However hydration and glucose via an IV line was continued.
The hospital wished to put in place a regime focused on palliative care rather than active treatment. Her family, who still held out hope for recovery, believed that nutrition should be reinstated. At the family’s insistence a further attempt to site the NG tube was attempted on 3 January 2024, but his too failed. Two external second opinions were then sought, and these agreed with the hospital that there was no clinical potential to restart provision of artificial nutrition in an ethical way and that palliation was the way forward.
There could have been absolutely no doubt that her family were strenuously opposed to this. When discussions did not achieve any compromise the hospital staff then indicated to the family that they were going to make an application to Court of Protection to seek endorsement of their approach. However, on 16 January 2024, the Trust confirmed to the family that they had been advised by their lawyers that it was not necessary for them to issue a Court application, as there was no appropriate option to re-start feeding.
This left P’s son who wished to challenge that decision to make an application to the CoP himself.
P’s son had initially attempted to contact the out of hours duty High Court Judge on 15 January. By 18 January, he had prepared a full CoP application which he emailed to the court. When the Court did not respond by the evening of 19 January he made a further out of hours application to Theis J, who asked the Official Solicitor (contacted via the out of hours line) to speak to him. The Official Solicitor provided him with details of solicitors specialising in this area of law. The next working day, Monday 22 January, in the afternoon the son, who had not engaged solicitors, appeared before Hayden J in person in the urgent applications list. The judge listed the case for the following day and proceeded to hear evidence and determine the matter over the next three days.
Although the Trust’s position at the outset of the hearing was that as their staff would not deliver nutrition there was nothing for the court to decide, Hayden J did not agree. Rather the Trust were asked to call evidence about the entirety of the care being delivered to EUP, which included the question of why the artificial hydration and glucose was being provided. In the course of the hearing, a best interests issue that had not initially been in dispute was identified, as the Official Solicitor queried the continued provision of hydration with additional glucose to EUP. Hayden J considered that this was being done as a compromise between medical staff and family and deprecated the result, saying “There may, sometimes, be a place for that, but not if the person at the centre of it becomes marginalised.”
On considering the substantive best interests issues, as Hayden J stated, “the law in this sphere is settled and relatively easy to state. The application of it, however, is always intensely difficult involving, as it invariably does, the intersection of ethics, medicine, the law and, not infrequently, religious belief.” Unsurprisingly this case set no new legal precedent. Unfortunately, for the applicant the eventual outcome was not what he would have wished for: the judge came to “the clear conclusion that neither provision of nutrition nor hydration was in P’s best interests.” Indeed, he found that in having continued giving IV hydration when no artificial nutrition was being provided “the Trust had failed to give sufficient thought to their obligations to their patient in relation to the hydration that she was receiving and which had been identified as delivering burden without benefit.”
Ignoring the Practice Guidance
The Practice Guidance in respect of ‘Applications Relating to Medical Treatment’ in the Court of Protection,  EWCOP 2, sets out the procedure to be followed where a decision relating to medical treatment arises and where thought requires to be given to bringing an application before the CoP. That guidance, issued four years ago by Hayden J when he was the Vice President, sets out when such applications should be made and who should bring them. The Guidance makes it abundantly clear what is to be expected of the public bodies in such cases, even where there is medical consensus. Where there is a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare the Trust should bring the case to court promptly.
Whilst the judge noted that this document is expressly stated to be by way of guidance only, it is rarely departed from in cases of this gravity. Hayden J emphasised that had the Trust followed it, and at an earlier stage, it would have greatly alleviated the stress to the family.
Moreover, as Hayden J emphasised in his judgment, where there is conflict in these serious medical treatment cases, it is in everybody’s best interests, but most importantly P’s, to bring an application to court, and that will be most efficiently achieved where it is driven by the Trust’s application.
As a practical point, the sequence of events indicates the scope for communication issues to escalate into legal proceedings: it is easy to imagine how difficult a grieving and struggling family would find it to deal with being told that there was a legal process which might offer them judicial redress, which the hospital would initiate, and then having that support withdrawn.
In such cases the Art 2 ECHR rights of the individual to whom life sustaining treatment is not being given arguably demand that the Trust, as a ‘public authority’ within the meaning of s.6 HRA 1998, give effect to the protections inherent in Art 2, as part of the general obligation on the State to protect the right to life at law.
Even where the position of the doctors is that the treatment is unconscionable and they will not provide it (and following Burke and N v A CCG cannot be required to do so by any CoP judge) a responsible public body should surely actively seek out a judicial endorsement of the ceiling of care they are imposing. Indeed that was precisely the application initially made in the seminal case of Aintree v James  UKSC 67 where at first instance when the Trust sought declarations regarding some proposed ceilings on Mr James’s care the judge declined to make them. There was no suggestion on the facts of that case that the application of the Trust was improperly brought. As Mr Justice Peter Jackson (as he then was) said in that case: “It must always be recognised that a declaration is not a treatment order, but the endorsement of a plan created by others.”
The Practice Guidance emphasises that where there is a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare:
“8…Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.
9. Where any of the matters at paragraph 8 above arise and the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must be made. This is to be regarded as an inalienable facet of the individual’s rights, guaranteed by the European Convention on Human Rights (‘ECHR’). For the avoidance of any doubt, this specifically includes the withdrawal or withholding of clinically assisted nutrition and hydration.”
P’s best interests must be at the very heart of the case. A public body’s firm belief that litigation will not alter their clinical approach should not stand in the way of upholding P’s Art 2 right to have the health professionals’ decision subject to the proper scrutiny by the Court. If not by a CoP judge, if the Trust is confident that there is no best interests issue to determine, then disputes can as an alternative be brought as a part 8 claim.
All public bodies and those who advise them in these most difficult cases should recognise that even if it is ‘only guidance’ the Practice Guidance is there to help. There are many and obvious reasons why it is also to the Trust’s advantage to have their treatment plans and any ceilings of care they have chosen to impose in such difficult cases scrutinised and, if they are correct, endorsed by the Court. Health bodies should also be aware of the risk of an adverse costs order where the court considers that they have behaved unreasonably in failing to bring an application: see MR v SR & Anor  EWCOP 54.
Bridget Dolan KC was instructed by the Official Solicitor.
David Lawson was instructed by Hempsons on behalf of the Trust.
 R(Burke) v GMC  EWCA Civ 1003,  QB 273 “if the doctor concludes that treatment is not clinically indicated, he is not required, (ie. he is under no legal obligation) to provide it to the patient, although he should offer to arrange a second opinion”.
  UKSC 22 at §34-35. Where baroness Hale explained how the court can only make a decision which P himself could have made. The court is in no better position than P and so has no greater power to oblige others to do what is best for P than P would have herself if he had capacity. Therefore, the court can only choose between the available options.
 at 
 Although the Trust’s view that this was the situation in this present case turned out not to be correct.
 We are grateful to Alex Ruck Keene who made this suggestion in email correspondence with your blogger.