Update to main text para 13.11, page 399
Mr Briggs[1] was agreed to be in a minimally conscious state; he was clinically stable and not in need of any invasive treatment. His treating team believed that he should be moved to a rehabilitation centre, where he could be monitored and potentially progress to a higher level of consciousness. His family felt that he should be transferred to a hospice, no longer provided with CANH, and allowed to die as peacefully and painlessly as possible.
It was agreed that the ‘best case scenario’ for Mr Briggs was that he would remain severely physically impaired and so dependent on others for all of his physical care and more specifically, that he would:
(1) not regain mental capacity to make complex decisions;(2) be happy;
(3) be able to make simple choices such as what colour t-shirt to wear;
(4) have some pleasurable experiences;
(5) have some painful experiences;
(6) be unlikely to be depressed given his lack of insight, including lack of insight as to his pre-injury life, and pre-injury expressed wishes and feelings;
(7) not have any improvement in his physical abilities;
(8) be severely physically impaired;
(9) need 24-hour care and be dependent on others for all activities of daily living;
(10) have some improvement in his medical symptoms with the optimal treatment that would be available[2].
Charles J refused to adjourn the proceedings to allow further consideration of Mr Briggs’ potential for improvement after six months rehabilitative treatment: another indication of the judiciary’s general view that these cases should be dealt with more expeditiously[3].
Charles J identified the question for his determination[4] as whether it was in Mr Briggs’ best interests for the court to give consent to his treatment by clinically assisted nutrition and hydration (‘CANH). If the answer was ‘yes’, the court would give consent; if ‘no’, it would not and it would therefore be lawful to withdraw CANH[5]. Defining the question was critical to the determination of the very legality of the continuation or withdrawal of CANH: Charles J stated it reflected
‘the doctrine of “double effect” which excludes the purpose of causing death and allows death to be knowingly caused as a side-effect, and so draws a distinction between the intention underlying an action on the one hand and the consequences that are foreseen but are not intended on the other.’[6]
Charles J was careful to emphasise that he was not dealing with a case of assisted dying or euthanasia[7].
Charles J considered that the fundamental principles engaged were (i) the sanctity of life (and so the strong – but not absolute – presumption in favour of continuing CANH) and (ii) the principle of self-determination. The best interests test of section 4 MCA 2005 as set out in Aintree was not a test simply of what P would have done or wanted[8]. However in engaging in an exceptionally careful ‘weighing exercise’ Charles J was understandably heavily influenced by the oral evidence from Mr Briggs’ family, friends and colleagues, which convincingly demonstrated that, if he could have made the decision himself, Mr Briggs would not have given consent to his treatment by CANH. Mr Briggs would have concluded that ‘for him such a life was intolerable’; moreover, as a ‘risk taker and a man of courage’ he would not have been put off by the risk of suffering pain as CANH was ended[9]. Ultimately, it was this conclusion which for Charles J was ‘the weightiest and so determinative factor’[10].
Briggs is particularly interesting for the lengthy consideration of how P’s best interests should be considered by reference to his past wishes and feelings, and also the type of person he was and the values by which he lived. There is much that can be debated in this type of case as to the extent to which the individual ‘post-accident’ is in some sense a different person to the one s/he was ‘pre-accident’, and so the extent to which those previously expressed wishes and values are relevant to the best interests consideration. It is well known that people can become more reconciled to serious disability than they would have predicted, and so become content with a life which they previously would have thought was not worth living. The problem for the court, of course, is that no one knows if the particular individual at the heart of the proceedings would have been such a person, or whether they would have remained of the view that ‘enough is enough’.
The judgment pushes the boundaries of what the court will contemplate in cases of withdrawal of CANH where the patient is not in PVS. Both previous cases where this has happened[11] had, as Charles J acknowledged, strong factual reasons in favour of withdrawal, as well as the support of the Official Solicitor for doing so. This is also the first case where the court has proceeded to judgment on the basis of an agreed best case scenario, rather than allowing time to explore what degree of improvement is possible. The authors consider it probable that more applications to withdraw CANH will follow in the wake of the decision.
In another ‘first’, Charles J permitted live tweeting from the court throughout the Briggs hearing, which both raised awareness of the case and allowed those present to correct media inaccuracies as they appeared.
Mr Briggs died shortly after judgment was handed down.
Footnotes
[1] Briggs v Briggs [2016] EWCOP 53
[2] §§(39), (51)
[3] §126; contrast Re M [2012] 1 WLR 1653, where proceedings took nearly five years in total, after Baker J agreed that M should be transferred to the Royal Neurological Hospital in Putney for five month’ rehabilitation. See also the comments in the recent judgment of Hayden J in Abertawe Bro Morgannwg University LHB v RY and CP [2016] EWHC 3256 to the effect that the ‘forensic instinct to leave no stone unturned’ in cases of such significance can lead to time-consuming but unnecessary assessments, and that practitioners must recognise that ‘delay which is not, on a true analysis, either constructive or purposeful is almost certainly damaging and inimical to P’s welfare.’
[4] following Aintree University Hospitals NHS Trust v James [2014] AC 509
[5] Overview §(17)
[6] Overview §§(18)–(19). On ‘double effect’ see main text para 13.6.
[7] Judges often stress in withdrawal cases that they are not dealing with issues of assisted dying, which arise where the patient has capacity to make the decision but lacks the physical ability to implement it. The ethical considerations are obviously very different.
[8] §§64-74, §121
[9] §§119-120
[10] Overview §(7)
[11] United Lincolnshire Hospitals NHS Trust v N [2014] EWCOP 16); and Re N [2015] EWCOP 76