Manchester University NHS Foundation Trust v William Verden (By His Litigation Friend, The Official Solicitor) and anor. [2022] EWCOP 8 Feb 2022 (here)

Mrs Justice Arbuthnot has sent out a clear message to all parties in Court of Protection proceedings that, when applying for reporting restrictions, there is an expectation that a full account will be given to the judge of any media coverage that had already taken place.

Establishing the best interests of William Verden is an extremely challenging task from a clinical, ethical and legal standpoint.   In early March ’22 a judge of the Court of Protection (‘CoP’) will decide whether this young man with moderate to severe learning disability, autism and ADHD, whose associated behavioural disturbances make it difficult for him to tolerate invasive medical procedures, should have the opportunity to undergo a kidney transplant that has at best a 50% prospect of success.

What brought the parties into court on 8 February was the question of whether William’s anonymity should be preserved by the standard Transparency Order (perhaps better described as a Reporting Restrictions Order or ‘RRO’) that had been made by a judge, on the papers, when this serious medical treatment case was issued.

Re AH [2021] EWCA  1768, 25.11.2021

Introduction

1. The four adult children of AH appealed the order made on 3 September 2021 by Hayden J sitting in the Court of Protection[1], in which he declared that it was not in AH’s best interests for her to continue to receive life-sustaining treatment, namely, ventilatory treatment after 31 October 2021.
2. The order was not to take effect until that date to enable AH’s children to make arrangements (including travel from abroad) to be with their mother at the time that ventilatory support was going to be withdrawn. This in itself was highly unusual (namely a declaration that permitted continuation of life-sustaining treatment for a further eight weeks, despite not being in AH’s best interests). However, Hayden J determined that AH herself would have wished to have her family present with her at the time that the ventilatory support was withdrawn.
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Judgment has today been handed down in In the matter of X (A Child) (No 2) [2021] EWHC 65 (Fam) an essential read for the law on consent to medical treatment in relation to those under 16 and those aged 16 and 17.

The facts:

X suffers from sickle cell syndrome and is a Jehovah’s Witness, as is her mother. On occasion, X is admitted to hospital in a crisis when, in the opinion of her treating clinicians, a top up blood transfusion becomes an imperative necessity. There were two such crises in June and October 2020 when urgent applications had to be made to the court for declarations permitting top up blood transfusions – see: Re X [2020] EWHC 1630 (Fam) and Re X [2020] EWHC 3003 (Fam).

As X had presented in crisis twice in a short space of time (the last crisis having been in 2015), and having taken on board the views expressed by the court regarding the unsatisfactory nature of such serious applications being made on an urgent basis, the Trust sought a rolling two year order (to continue until X turns 18) authorising further top up blood transfusions in the event of further serious deterioration in X’s condition. The application in October 2020 came before Sir James Munby who having made the declaration permitting a single top up blood transfusion to deal with the immediate crisis, adjourned the matter for proper and due consideration to be given to X’s application that Gillick competent minors should be afforded the exclusive right to decide their own medical care in the same way as their peers aged 18 or over.

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.