M v A Hospital [2017] EWCOP 19

"This judgment is given: (a) To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS). (b) In response to the request of the parties for clarification of whether legal proceedings were necessary or not when there was agreement between M's family and her clinicians that CANH was no longer in her best interests. (c) To explain why the court appointed M's mother, Mrs B, as her litigation friend, rather than the Official Solicitor. The short answer to these questions is that: (a) CANH was withdrawn because it was not in M's best interests for it to be continued. The evidence showed that it had not been beneficial for the previous year. (b) In my view, it was not necessary as a matter of law for this case to have been brought to court, but given the terms of Practice Direction 9E and the state of the affairs before the very recent decision of the Court of Appeal on 31 July in the case of Briggs [2017] EWCA Civ 1169, it is understandable that the application was made. (c) Mrs B was appointed as litigation friend because she was a proper person to act in that role: the fact that she supported the withdrawal of her daughter's treatment did not show that she had an adverse interest to her."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

The WLR Daily case summaries

[2017] WLR(D) 615.

Court of Protection

M v A Hospital

[2017] EWCOP 19

2017 June 22; Sept 20

Peter Jackson J

Mental disorder— Incapable person— Best interests— Incapacitated person in minimally conscious state in hospital— Application for declaration that withdrawal of life-sustaining treatment in incapacitated person’s best interests — Whether treatment to be withdrawn— Whether legal proceedings required where no dispute as to treatment— Whether necessary to appoint Official Solicitor as litigation friend— Human Rights Act 1998 (c 42), Sch 1, Pt 1, art 2 — Mental Capacity Act 2005 (c 9), s 5 — Court of Protection Rules 2007 (SI 2007/1744), r 140, Practice Direction 9E

The incapacitated person (“P”), who suffered from Huntington’s disease, was in a minimally conscious state in hospital under a deprivation of liberty authorisation granted by the relevant supervisory body. P’s mother and litigation friend, supported by P’s family, her clinicians and an external specialist second opinion, by an application under section 21A of the Mental Capacity Act 2005 inter alia sought a declaration that it was in P’s best interests not to continue to receive clinically assisted nutrition and hydration (“CANH”), with the consequence that she would die. The parties also sought clarification whether legal proceedings were necessary when P’s family and her clinicians agreed that CANH was no longer in her best interests and an explanation why the court had appointed P’s mother as her litigation friend rather than the Official Solicitor.

On the application—

Held, declaration granted. (1) Accepting the evidence of the family and the clinicians, who had reached their positions after the most careful thought, placing P at the centre of their concern and concluding that she would not have wanted to go on living as she was, nor endure the inevitable continued decline in her terminal condition, it was no longer in P’s interests for her life to be artificially continued by CANH. That treatment should therefore be discontinued and replaced by palliative care after a meeting of family members and professionals had agreed on a suitable timetable (para 26).

Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591, SC(E) applied.

(2) On the facts of this case, there had been no legal requirement for the decision to withdraw CANH to have been taken by the court. As a matter of law there was no statutory obligation to bring the case to court nor did the state’s duty under article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms mandate court oversight. Therefore, a decision to withdraw CANH, taken in accordance with the prevailing professional guidance would be lawful and the clinicians would benefit from the protection of section 5 of the Mental Capacity Act 2005. The court was always available where there was disagreement, or where it was considered for some other reason that an application should be made, but that would only arise in rare cases. That conclusion did not in any way detract from the crucial importance of structured medical assessment in persistent vegetative/minimally conscious state cases or from the obvious need for expert second opinions in such cases. Therefore, notwithstanding Practice Direction 9E, which provided, inter alia, that decisions about the proposed withholding or withdrawal of CANH from a person in a persistent vegetative or minimally conscious state should be brought to court, the decision about what was in P’s best interests was one which could lawfully have been taken by her treating doctors having fully consulted her family and having acted in accordance with the 2005 Act and with recognised medical standards. Furthermore, the approach taken by the clinicians and the family fully respected P’s article 2 rights. However, every case was intensely fact-specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seemed to them right to do so (paras 37, 38).

Dicta of Baker J in In re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653, paras 258–259, of Newton J in St George’s Healthcare NHS Trust v P (2015) 145 BMLR 86, paras 46–49 and of Eleanor King LJ in In re Briggs (Incapacitated Person) [2017] EWCA Civ 1169 at [108], CA applied.

(3) By rule 140 of the Court of Protection Rules 2007 a person might act as a litigation friend if he (a) could fairly and competently conduct proceedings on behalf of that person, and (b) had no interests adverse to those of that person. There was, however, no rule that the Official Solicitor always had to be appointed. There was no reason to believe that P’s mother’s ability to act on P’s behalf had been compromised by her family relationship, or by her considered beliefs about her daughter’s best interests. She also had the ability to conduct the proceedings competently, having the advantage of leading solicitors and counsel in the field so that in all the circumstances, and on the particular facts, P’s mother was a suitable litigation friend (paras 41–43).

Dicta of Charles J in In re NRA (2015) 18 CCLR 392, paras 158–175 applied.

Quaere. Whether the state is obliged to provide funding to ensure that a fair hearing is possible in those cases that do have to come to court (para 40).

Parishil Patel (instructed by Capsticks) for the hospital.

Victoria Butler-Cole by written submissions on behalf of M through her litigation friend, Mrs B.

Bridget Dolan QC and Susanna Rickard by written submissions on behalf of the Official Solicitor at the invitation of the court.

Reported by: Jeanette Burn, Barrister

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