How many of us have thought about making a living will? Living wills — or, more accurately, advance decisions — enable adults with mental capacity to make a decision to refuse treatment if they lose capacity in the future.

One of the most common reasons why people lose capacity and require medical treatment is dementia. According to the Alzheimer’s Society, 225,000 people in the UK will develop dementia this year, or one person every three minutes. By 2025 there will be more than a million people with dementia in the UK.

Even though dementia is common, living wills are relatively rare. Only 5 per cent of people in the UK have made one. This ranges from 1 per cent of those aged 18 to 34, to a still modest 12 per cent of people over 75. Of course, some may have made a positive choice against making a living will, and others may have signed a lasting power of attorney that covers medical treatment. It seems likely, however, that many of us simply prefer not to think about the issue.

Introduction

“Right-to-die cases do not need to go to court, judge rules” or “Judge changes rule on ending life support for terminally-ill” were typical of some of the inaccurate headlines which greeted the recent and important judgment of Peter Jackson J in M (by her litigation friend Mrs B) v A Hospital [2017] EWCOP 19.

The application to the Court of Protection had nothing to do with the so-called “right-to-die”, where a capacitous individual seeks medical intervention to end an intolerable life. Nor did it relate to the withdrawal of treatment for a patient who was ‘actively’ dying. Rather, it involved an application for a declaration that it was lawful to withdraw clinically assisted nutrition and hydration (‘CANH’) from a clinically stable 50-year-old patient with minimal awareness of herself or her surroundings due to neurological deterioration caused by Huntington’s disease. Tragic as they were, the facts of the case and the remedy sought were not unusual for serious medical treatment applications before the Court of Protection.

The real significance of the decision lies in the fact that, having received competing submissions on the issue, and despite expressing his decision to be on the facts of the case, Peter Jackson J determined that there is no legal obligation to seek authorisation from the Court before withdrawing CANH in PVS or MCS cases provided that: (judgment, §36-38)

• the clinicians act in accordance with prevailing professional guidance, currently the GMC’s Good Medical Practice guidance, the BMA guidance ‘Withholding and Withdrawing Life-prolonging Medical Treatment’ and ‘End of Life Care’, and the Royal College of Physicians’ Guidance on Prolonged Disorders of Consciousness;
• structured medical assessment has been undertaken;
• an expert second opinion has been obtained;
• the principles in the MCA are applied; and
• all concerned agree that the continuation of such treatment is no longer in P’s best interests.

Notwithstanding this, we suggest that if withdrawal of CANH is proposed in a PVS or MCS patient who is not ‘actively’ dying, an extremely cautious approach should be taken to dispensing with the need for a Court application.

Background

Not to make an application to Court to authorise the withdrawal of CANH from a patient in PVS or MCS would represent a clear departure from practice established since the decision in Airedale NHS Trust v Bland [1993] AC 789.

Peter Jackson J has handed down an important judgment concerning the requirement set out in PD9E for an application to be made to the Court in every case where withdrawal of clinically assisted nutrition and hydration is contemplated. In M (by her litigation friend Mrs B) v A Hospital [2017] EWCOP 19, the judge agreed with the obiter comments of Eleanor King LJ in The Director of Legal Aid Casework & Ors v Briggs [2017] EWCA Civ 1169 at paragraph 108, that where there is no dispute about the medical treatment to be provided to an incapacitated person, then doctors can make the decision in P’s best interests and proceed with the protection from liability provided by section 5 MCA 2005.

A full update will follow on Monday, but it should be noted that the Judge specifically confined his ruling to the facts of the case, noting that although the Official Solicitor had made written submissions he had not been a party (unusually, P had been represented by her mother as litigation friend), and there had been no oral argument on the point.

The Judge’s conclusions, which he said were to be seen in light of the above, are set out at the judgment at paragraph 37-38:

37. On the facts of this case, I do not consider it to have been a legal requirement for the decision to withdraw CANH to have been taken by the court, though it is entirely understandable that the parties sought an external decision, given the state of the law. My reasoning on the question is as follows:

(1) There was no statutory obligation to bring the case to court, and although the cases and materials mentioned in this judgment are of considerable authority, they do not all point in one direction and they are not formally binding upon me. None of them sustains the proposition that a court decision is necessary as a matter of law, as opposed to as a matter of practice. What is however clear is that the court is not the source of lawfulness: it identifies whether treatment is or is not lawful, but it cannot make unlawful treatment lawful, or vice versa.

In the final part of the sad saga regarding the withdrawal of artificial nutrition and hydration from a brain injured man in MCS, the Court of Appeal have now made it clear in Director of Legal Aid Casework & Ors v Briggs [2017] EWCA Civ 1169 that seeking an order under section 21A of the MCA is not a legitimate way of seeking a best interests declaration in respect of serious medical treatment.  King LJ said at [110]:

“…in my judgment s.21A goes to a consideration of whether the detention or deprivation of liberty is itself in P’s best interests and, whilst the surrounding circumstances are part of the picture, the question is not whether the circumstances, including the medical treatment P requires, (which amount to a deprivation of liberty), are in the best interests of P, but whether it is in the best interests of P to be a detained person.”

Update to para 5.35, page 160: Costs

In MR v SR and Bury Clinical Commissioning Group [2016] EWCOP 54[1], a rare costs award has been made in a medical case in the Court of Protection. The substantive application in this case was brought by SR’s daughter, MR, in the face of the Clinical Commissioning Group’s (‘CCG’) failure to do so. The CCG opposed the application and maintained its opposition until the Official Solicitor changed his position, after the first day of evidence. The parties then agreed that the application should be granted but Hayden J considered it necessary to hear a further day’s evidence from the three instructed experts before reaching his conclusion. MR sought her costs of bringing the application.