A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD [2019] EWCOP 18
The lesson to be learned from this case is to be careful of the hands into which you may fall, should you become incapacitated and end up in a vegetative or minimally conscious state.
The patient in this case, P, was traumatised by a drug overdose in 2014. Since then she has been tracheotomy dependent and tube-fed. She is vulnerable to fitting, chest infections and other forms of ill-health. She was initially diagnosed as being in a vegetative state which was subsequently revised to that of a minimally conscious state.
At the time of the application she was in a unit specialising in rehabilitation for those suffering from neurological impairment. Staff at the Unit hold strong pro-life views. The CCG, the applicant in this case, was funding that treatment. There was no disagreement between the Official Solicitor, the CCG and the family as to the correct course of action; that Clinically Assisted Nutrition and Hydration (CANH) should be withdrawn. However, given the contrary views expressed by the staff who care for P, the CCG decided to bring this matter before the court. MacDonald J concluded that, whilst the application proceeded unopposed by all parties to it, it was appropriate to deliver a fully reasoned judgment.
As to capacity, there was no doubt that all of P’s sensory input was “disordered”.
She can see, but it is impossible to determine the degree to which she is able to understand what she is seeing and her understand what she is seeing and her understanding of visual input is likely to be limited. She can hear, but it is impossible to know what she is able to understand.
On the question of her best interests, the evidence was compelling. The family told the court that P had had a relationship with a man who had suffered traumatic brain injury which required him to be placed on life support. P had been involved in the decision to terminate that support and she had said to her family that she would not want to be “left in such condition if anything [similar] happened to her”.
“…if it ever happened to me I would not want to be a cabbage.”
P’s family were of the view that her wishes would have been for treatment to be withdrawn. The Official Solicitor supported this position, as did the treating CCG applicant.
The staff at the treating Unit opposed discontinuation of CANH. They felt that P’s responses to her experience showed that she had quality of life.
Because of the rehabilitation unit’s general pro-life position they had not provided the court with an end of life care plan should the Court authorise withdrawal of CANH. Within this context, the court was invited by the parties to make an ‘in principle’ decision with the parties to apply in the event of any disagreement over the care plan arrived at.
When considering P’s best interests under the Mental Capacity Act, MacDonald J recalled the words of Hayden J in M v N regarding the interrelationship between the sanctity of life and cogently expressed wishes of the patient in question:
… the ‘sanctity of life’ or the ‘intrinsic value of life’, can be rebutted (pursuant to statute) on the basis of a competent adult’s cogently expressed wish. It follows, to my mind, by parity of analysis, that the importance of the wishes and feelings of an incapacitated adult, communicated to the court via family or friends but with similar cogency and authenticity, are to be afforded no less significance that those of the capacitous.
Over fifteen years ago Munby J … observed in R (Burke) v GMC [2004] EWHC 1879 (Admin) that the obligation to preserve life is not absolute. “Important as the sanctity of life is, it may have to take second place to human dignity”.
MacDonald J attached considerable weight to evidence of P’s own views on being left in a condition akin to that of her former partner. Neurological diagnoses advance, and the law has to keep up. There is, in the judge’s view, “no prohibition on conducting a best interests analysis with respect to the continued provision of CANH even though P is not in a vegetative state but a minimally conscious one”
The evidence before the court as to P’S wishes was conclusive. Her past wishes should prevail over the “very strong presumption in favour of preserving her life, where those wishes were clearly against being kept alive in her current situation.”
“Whilst the ‘pro-life’ approach (as they themselves describe it) taken by a number of the members of staff in the current situation is a valid point of view, in the circumstances of this case I am satisfied that it is contrary to the clearly expressed view of P before she lost capacity.”
Within this context, he was satisfied that the presumption in favour of living should give way to P’s strongly held views prior to her becoming incapacitated, that she would not wish to be kept alive in her “current parlous condition”.
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