An NHS Foundation Trust v MC [2020] EWCOP 33

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, 3.6.2020

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’.

This blog is written towards the beginning of the Covid-19 lockdown. We are not yet three weeks in, and do not know what the future holds. This post has already been updated once since publication and in the fast paced news of coronavirus, more updates will come. This post therefore may not be an exhaustive analysis, but we will revisit the subject as and when developments require. We would also welcome any relevant new information on the topic, especially from those at the front line: please send to sroper@serjeantsinn.com.

The Government is clear that there is not, and is unlikely to be, a situation where there are more patients nationally requiring ventilation than there are ventilators. If achieved, avoidance of the situation faced by doctors in Italy and Spain will come about by a combination of increased supply of ventilators, moving patients and ventilators around to match supply to demand, and the application of tough triage criteria, so that access to ventilation is limited to those likely to make a recovery.

But avoidance cannot be guaranteed. Local surges in demand will occur, and may lead to temporary shortages. The risk of demand exceeding supply exists. News reports in The Guardian and Daily Mail suggest that this has already happened in some hospitals.

Were that risk to eventuate, the withdrawal issue would arise:

Can a ventilator ever lawfully be removed from a ventilated patient who may be deriving benefit from it, for the purpose of providing that ventilator to different patient?

If it can, how should withdrawal and reallocation decisions be made?

In our view, these questions should be asked and answered now, before the risk eventuates, and in the profoundest hope that it never does.