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:
- 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.
(2) The essential question is whether the state’s Art. 2 duty mandates court oversight as a matter of law. I do not consider that it does, for these reasons:
(i) The present practice is anomalous. The right to life belongs to everyone, enabled and disabled. Individuals who are in PVS or MCS are at the extremes of vulnerability, but many among us will at some time in our lives come to be in a precarious state. Overwhelmingly, treatment decisions up to and including the withholding and withdrawal of life-support are taken by clinicians and families working together in accordance with recognised good practice. No one suggests that these decisions should all be the subject of external supervision.
(ii) The question that therefore needs to be answered is whether it is necessary and proportionate for legal proceedings to be required only in a limited subset of cases. Are these cases so different in kind to other serious medical treatment decisions as to justify a completely different approach? In my view, they are not. The reasons given for requiring all PVS/MCS cases to come before the court could equally apply to a very much larger patient population.
(iii) Consideration must also be given to the deterrent effect of costly and time-consuming proceedings, both on the individual case and on the patient population in general. The equality rights of disabled persons require clinicians and carers to take reasonable steps to assure themselves that the treatment and care they are providing is and continues to be beneficial, and that the person’s unique point of view is not forgotten because they are unable to express it for themselves. A mandatory litigation requirement may deflect clinicians and families from making true best interests decisions and in some cases lead to inappropriate treatment continuing by default. Indeed, the present case stands as an example, in that M received continued CANH that neither her doctors nor her family thought was in her best interests for almost a year until a court decision was eventually sought.
(iv) It is not suggested that the court should be involved in PVS/MCS cases where there is a valid and applicable advance decision, yet the grave consequences of the decision and the risk of error are no different in such cases.
(3) In my judgment, therefore, a decision to withdraw CANH, taken in accordance with the 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 – will be lawful and the clinicians will benefit from the protection of s.5. The court is always available where there is disagreement, or where it is felt for some other reason that an application should be made, but this will only arise in rare cases, such as Aintree.
(4) This conclusion does not in any way detract from the crucial importance of structured medical assessment in PVS/MCS cases: see Baker J in W v M at [258-9] and Newton J in St George’s Healthcare NHS Trust v P & Q [2015] EWCOP 42 at [46-49]. Nor does it detract from the obvious need for expert second opinions in these cases.
- Therefore, in agreement with the analysis of the Court of Appeal in Briggs, I would hold that notwithstanding PD9E, the decision about what was in M’s best interests is one that could lawfully have been taken by her treating doctors, having fully consulted her family and having acted in accordance with the MCA and with recognised medical standards. These standards will doubtless evolve, including through the current initiative taken by the ad hoc Committee, but in my view the approach taken by the clinicians and the family in this case fully respected the Art.2 rights of M in a fashion contemplated by the ECHR in Lambert. However, every case is intensely fact-specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.
Bridget Dolan QC and Susanna Rickard provided written submissions on behalf of the Official Solicitor at the invitation of the Courts.