A Clinical Commissioning Group v P (by Her Litigation Friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 22 May 2019 |
| Neutral Citation | [2019] EWCOP 18 |
| Court | Court of Protection |
| Docket Number | Case No: 13398954 |
| Date | 22 May 2019 |
[2019] EWCOP 18
IN THE COURT OF PROTECTION
Preston Combined Court Centre
Openshaw Place, Ringway
Preston, PR1 2LL
THE HONOURABLE Mr Justice MacDonald
Case No: 13398954
and
Mr Peter Mant (instructed by Hill Dickinson) for the The Applicant
Mr Michael Horne QC (instructed by the Official Solicitor) for First Respondent
The Second Respondent appeared in Person
Hearing dates: 13 May 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice MacDonald
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of P, members of P's family and those caring for P must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
In this matter I am concerned with a decision of the utmost gravity in relation to P. Namely, whether this court should declare that P lacks capacity to make decisions regarding clinically assisted nutrition and hydration (hereafter CANH). In circumstances where the court concludes that P lacks capacity to decide for herself whether or not to continue to receive CANH, the applicant invites the court to consent on P's behalf to the withdrawal of that treatment, a step that will result in her death. In considering these applications, at all times P remains at the centre of the court's decision making process (see Aintree University Hospitals NHS Trust v James [2014] AC 591 per Baroness Hale).
The application is brought by a Clinical Commissioning Group. The applicant is responded to by the Official Solicitor acting as litigation friend for P and by TD, P's eldest daughter. Both the Official solicitor and TD support the application. Given the very limited geographical area covered by the CCG in this case, it is my intention to anonymise the identity of the CCG, and of the treating doctors in this case in order to avoid ‘jigsaw’ identification of P and her family.
In An NHS Trust v Y [2018] UKSC 46, the Supreme Court made clear that there is no requirement to go to court to seek approval for the withdrawal of CANH provided that (a) the provisions of the Mental Capacity Act 2005 have been followed, (b) the relevant guidance has been observed and (c) there is agreement as to what is in the best interests of the patient. However, where there is a disagreement as to a proposed course of action, or where the approach is finely balanced, an application to the court can and should be made.
In this case, as I have recounted, there is no dispute between applicant, the Official Solicitor and the family about the correct course of action. However, given certain contrary views expressed by the dedicated staff who now care for P and the neutral position taken by her treating clinicians in this case, the applicant made the decision to bring this matter before the court. Within this context, and whilst this application proceeds unopposed by all parties to it, I consider it appropriate to deliver a fully reasoned judgment given the particular circumstances of this case and the profound significance of the decision this court is now charged with taking.
In making my decision, I have had the benefit of reading the bundle lodged in this matter, which bundle includes the statements and attendance notes filed and served by the Official Solicitor, including a statement from James Beck of the Official Solicitor's Office exhibiting his attendance notes, dated 26 April 2019, a statement from David Edwards of the Official Solicitor's Office exhibiting his attendance notes, dated 9 May 2019, a statement from TD, dated 2 May 2019, a statement from NH, a Nurse Advisor, dated 15 December 2019 and the expert report of Dr Pinder, Consultant in Neurological Rehabilitation, dated 21 October 2018. I have also heard brief submissions from Mr Peter Mant, on behalf of the Applicant, Mr Michael Horne, Queen's Counsel, instructed by the Official Solicitor on behalf of P and from TD in person, and have had the benefit of both counsels' careful and considered Skeleton Arguments.
BACKGROUND AND EVIDENCE
In determining this matter, the Court must look at P's welfare in the widest sense, and accordingly examine not just the medical position but also P's social and psychological milieu. Within this context, and in circumstances where (a) the best interests test contains a strong element of substituted judgment that accepts that the preferences of the person concerned are an important component in deciding where her best interests lie, (b) both P's past and present wishes and feelings, and the beliefs and values (not limited to religious beliefs but also what was important to her, how that affected her view of the world) that would be likely to influence her decision are relevant and (c) the court must also look beyond those beliefs and values by considering any other factors that would have been likely to have influenced her in making the decision about whether to continue to receive CANH, it is important to consider the background in some detail.
In considering the background to this matter, I make clear that the descriptions of P set out below are those provided to the court by those who know her best.
P is an only child to her mother, HS. HS died in 2017. P however, has a half-sister, LD. P was raised in the North West, living until the age of eight with her mother and LD, at which point her mother moved out. It is clear from the evidence before the court that P and LD remained close thereafter. LD has attended this hearing.
P is described by those who know her as having been a “party girl”, sociable and a person who loved dancing, singing and karaoke. She also loved talking to people and her family describe her, affectionately, as a person who was outgoing and enjoyed being the centre of attention. Within this context, her family describe her as someone who was the ‘life and soul’ of any party or family gathering. P is further described by her eldest daughter TD as having an adventurous spirit and TD recalls water fights in the garden, and her good cooking. TD also attends this hearing.
It is clear on the evidence from the family that is before the court that P cared about her appearance and was conscious about her weight, to a degree that created difficulties with her school attendance. She remained self-conscious regarding her appearance into adulthood. Her family note that she took care in her appearance until her downward spiral in the year before the drug overdose in April 2014 that led to the present position.
P was raised in the Catholic faith but stopped practising that religion in her late teenage years. As an adult, it would appear from the evidence that is available to the court that she had no religious beliefs. Her family relate that she did not talk about God. Within this context, I note that P expressed a very clear preference for a Humanist funeral without hymns both for her father and for herself.
As I have noted, P has an older daughter, TD. TD's father is NG. He too attends this hearing. In 2001 P and NG moved abroad, returning to this jurisdiction in 2003. They separated in December 2003. Following the separation NG states that their relationship was reasonable, although not always so, and they remained in contact. Following their separation, P and NG shared care of TD, with her spending weekends with NG and weeks with P. This arrangement changed in 2009, when TD went to live permanently with NG following P moving to a different town.
Thereafter, it is plain that P's life was not an easy one. The evidence before the court indicates that P commenced a relationship with a man who had overcome intravenous drug use. Tragically, he was seriously injured, suffering a traumatic brain injury that required him to be placed on life support. P was involved in the decision to terminate his life support. Her family consider that she found this upsetting. This sad event has taken on renewed significance in the context of these proceedings. At a best interests meeting concerning P held on 5 June 2014, her own mother, in commenting that P would not want to live in the circumstances that by then pertained also for her, provided details:
“…of her late partner who was on a life-support machine and P and his mother had to make the decision to turn off the life-support machine. P had said to her family that she would not want to be left in such condition if anything happened to her”.
At that meeting, both HS and TD confirmed that that was the only conversation that they could recall having with P about this type of situation. However, as will be seen, each referenced P's statement in this regard on a number of occasions thereafter.
Following this difficult period, P entered another relationship, which association her family describe as “toxic”, her then partner being a heavy drinker. He died of a methadone overdose in 2011 or 2012. During the course of that relationship, P had another daughter, S. P was described by her family of being incredibly proud of S and of idolising her youngest daughter. Following this difficult period, P moved once again, to be close to her own mother, HS. During this period she had contact with TD approximately three times per week. TD describes her and her mother as talking to each other more like friends than...
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