Natasha Partos on the latest COP case on best interest decision and requirement for legal proceedings

M v A Hospital 2017 EWCOP 19

On 20^th September 2017, Mr. Justice Peter Jackson handed down the decision of M v A Hospital which concerned a best interest decision to withdraw clinically assisted nutrition and hydration.

As he heads to the Court of Appeal this judgment serves to remind us of how important Peter Jackon has been to this jurisdiction during his tenure at the High Court.

Proceedings concerned M who suffers from Huntington’s disease. The application was brought concerning the deprivation of liberty. However, all parties accepted that the court was really being asked to determine whether it would be in M’s best interests to stop receiving clinically assisted nutrition and hydration (CANH), without which she would die.

The court heard how M had been dependent on a PEG tube for the last 10 years. By the time of the hearing M was rarely awake and was described by her mother as a ‘body on a bed’ who was unconscious, without the ability to recognise loved ones and unable to engage with others. M’s husband and daughter also supported the application and confirmed that in their view M would not have wanted to be kept alive with no hope of recovery or improvement. M’s clinicians confirmed that she may be experiencing discomfort and possibly pain. Furthermore both medical experts supported a withdrawal of CANH.

Jackson J decided 3 main points:

1. Was it in M’s best interests to stop receiving CANH?
2. Was the issuing of court proceedings necessary following Briggs?
3. Whether such cases can properly be brought as deprivation of liberty cases?

ISSUE 1

In a predictably deft analysis of M’s best interests, Jackson J agreed with the parties that it was no longer in M’s best interest for her life to be artificially continued by CANH and ordered that treatment should be discontinued and replaced with palliative care.

ISSUE 2

Jackson J went on to consider whether the legal proceedings had been necessary following the decision in Briggs [2017]EWCA Civ 1169.In Briggs it was determined that if a person is ‘ minimally conscious or in a persistent vegetative state… the decision as to what treatment is in the patients best interests can be taken by the treating doctors who have immunity from S.5 MCA’.

The Court noted the anomaly contained in Practice direction 9E, namely that decisions to withdraw or withhold CANH should be brought to court and also noted that the Court of Protection Rules Committee had already indicated its recommendation that by the end of the year the provision ought to be removed.

Jackson J held that on the facts he did not consider that it was a legal requirement for the decision to withdraw CANH to have been taken by the court. The decision could have been made by the treating practitioners in accordance with the family’s consent and Jackson J confirmed that:

• if a decision to withdraw CANH is taken by medical professions in accordance with prevailing professional guidance it will be deemed lawful and the relevant medical practitioners ought to be protected by s.5 MCA and,
• the court should only be called upon to assist if there is a disagreement between the parties, or in rare cases if some other reason dictates that an application should be made. The Court emphasised that medical assessments and expert second opinions would obviously still be needed in order to come to a decision about the withdrawal or withholding of CANH.

ISSUE 3

Finally, Jackson J held that this case should not have been brought as a deprivation of liberty case. He highlighted the pressing need for legal aid funding in cases concerning ‘right to life’ considerations under article 2 HRA. However, he contended that the states obligation to honour such funding would need to be determined in a future case.

This case has confirmed a key practice point that when dealing with a minimally conscious P or P in a permanent vegetative state and when all the parties involved are in agreement about the decision to withdraw or withhold CANH. Whilst each case will turn on its own facts, there is no requirement to make an application to court for its approval.

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