CWM TAF University v F
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Newton |
| Judgment Date | 15 May 2015 |
| Neutral Citation | [2015] EWHC 2533 (Fam) |
| Court | Family Division |
| Date | 15 May 2015 |
| Docket Number | Nos. COP11469006/FD15P90012 |
[2015] EWHC 2533 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Newton
Nos. COP11469006/FD15P90012
Mr. A. Bagchi QC (instructed by the Health Authority) appeared on behalf of the Applicant.
Sir R. Francis QC (instructed by Official Solicitor) appeared on behalf of the Respondent.
This case has come into my list on short notice. This is an extempore judgment in proceedings concerning F, who was born in 1948 and is therefore sixty-seven. She has been an inpatient since 2007. The court has had the considerable benefit of Counsel, Mr. Andrew Bagchi QC for the Authority, the applicants, and Sir Robert Francis QC on behalf of the patient, F, through the Official Solicitor.
This application was issued on 25 th February for a declaration under s.15 of the Mental Capacity Act: Firstly, that F lacks capacity; secondly, to make decisions about her clinically assisted nutrition and hydration; and, thirdly, the central issue, that it is not in F's best interests for clinically assisted nutrition and hydration to be continued, that it is lawful and in her best interests for clinically assisted nutrition and hydration to be withdrawn.
The court has had the benefit of considerable expertise which has been of great assistance. I am in no doubt where her best interests lie andI grant the applications as sought. F has been comprehensively assessed and over a very prolonged period. I find that she has been in a permanent vegetative state for many years; at least five and in all probability eight. In those circumstances it seems to me the current options for her treatment are no longer viable, and the balance if there is one all falls one way. Therefore the declarations which are sought are in F's best interests – that is to withdraw clinically assisted nutrition and hydration – I endorse the views of the clinical team, the Official Solicitor and the family.
Whilst I expressed some anxiety that the guidance has not been followed in this Court in relation to the family generally, nonetheless it seems to me that their position is clear and unequivocal. The evidence contained within the papers is well summarised by Ms. T, F's daughter: she asserts that she did not think that her mother would have wanted to be kept alive in a state such as this. She recollected that her mother had a neighbour with Multiple Sclerosis who was in a wheelchair; she recalled her mother saying that she would not want to live in that fashion. Nothing was put in writing by her mother that would assist in the determination of her current circumstances. She, and indeed all the family, support the application. As I say it is not entirely clear of the reason, but the guidance in relation to the consultation and continuing consultation with the family has not in fact been well complied with here. I am not asked specifically to rule on it and, I do not do so, since it has not become a major hurdle.
The Background
F was born in 1948. She has lived the whole of her live in the valleys in South Wales. It is evident that many years ago, at least from 1993 onwards, she had significant liver failure caused by chronic abuse of alcohol. She retired through ill-health in 1997. She had been admitted to hospital on a number of occasions in 2000, 2001 and 2006. Her health came to a crisis on 11 th January 2007 when F was found slumped across her bed apparently with concussive symptoms. The records at the time and the Glasgow Coma Scores that were taken demonstrate, together with the CT scan, extensive intracerebral haemorrhaging involving the right frontal lobe. It is described in the papers as acute and bilateral subdural haematoma. Over the next two days, whilst in hospital, there was a reduction in her level of consciousness. On 28 th February 2007 F was transferred to a different hospital where she has remained ever since. In general terms, she has been assessed over a long period (8 years) as being in a vegetative state with no perception of her surroundings. She is not communicative, although she has and does make moaning sounds and can blink her eyes (but these are considered to be entirely reflexive movements). In 2010 it was recorded by a nurse that F was in a persistent vegetative state, having no communication or interaction with family or care staff.
As long ago as 2013 a best interests meeting concluded unanimously that the invasive nature of any procedures — that is to say in relation to the advantages and disadvantages with associated surgery — were not in her best interests. The current application was triggered, as I understand it, by an anxiety about the Percutaneous endoscopic gastrostomy tube. That in fact has been dealt with on a temporary basis and forms no part of this judgment. What is evident from the evidence produced by the Authority is that it is the unanimous view of the treating clinicians F has been in a vegetative state now for eight years, and to undertake any further surgical processes would be invasive and from which she would not derive any benefit. In addition, of course, they seek other declarations which I shall make at the end of this judgment.
The Legal Framework
I have been referred to and follow the decisions of Baker J in Gloucester CCG v AB & Others [2014] EWCOP 49 and WM [2011] EWHC 2443 Fam, which helpfully summarises the established principles:
Capacity is not in issue between the parties. The unanimous clinical and expert opinion is that due to her severe brain injury F lacks capacity within the meanings of sections 2 and 3 of the MCA to make decisions regarding her medical treatment and litigation. Section 2(1) provides:
"For the purposes of this Act a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain."
Section 3(1) of the MCA provides:
"(1) For the purposes of section 2 a person is unable to make a decision for himself if he is unable: (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision; or (d) to communicate his decision (by talking, using sign language or any other means)."
Section 4(3) of the MCA provides that when making any decision for those lacking capacity it must be considered whether it is likely that the person will at some time have capacity in relation to the matter in question. The uncontested expert and clinical evidence is that it is likely that F will never regain capacity.
Best Interests
Section I (5) of the Mental Capacity Act 2005 provides that:
(1) An act done or a decision made under the Mental Capacity Act 2005 for or on behalf of a person who lacks capacity must be done or made in his best interests.
(2) In determining what is in the best interests of an incapacitated adult, the court must apply the relevant provisions of section 4 of the Act in particular subsections (1) to (7).
1. In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of —
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
2. The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
3. He must consider —
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
4. He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
5. Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
6. He must consider, so far as is reasonably ascertainable —
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
7. He must take into account, if it is practicable and appropriate to consult them, the views of —
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
Where a person is unable to consent to medical treatment, it is lawful to provide the patient with treatment if it is necessary and in his best interests. The focus is not on whether it is in the patient's best interests to withhold treatment, but rather on whether it is in his best interests to give or continue the treatment (the 1993 Airedale case and the judgment of Baroness Hale of Richmond):
(i) In making a decision concerning life sustaining...
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