Hounslow Clinical Commissioning Group v RW (by his litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 29 March 2019 |
| Neutral Citation | [2019] EWCOP 12 |
| Docket Number | Case No: COP 13216755 |
| Court | Court of Protection |
| Date | 29 March 2019 |
[2019] EWCOP 12
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: COP 13216755
and
and
and
and
Ms Katie Scott (instructed by Capsticks) for the Applicant
Ms Emma Sutton (instructed by the Official Solicitor) for the 1 st Respondent
PT (2 nd Respondent) acting in person.
Hearing date: 29 March 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 Hayden
This judgment was delivered in open court.
This is an application brought by the Hounslow Clinical Commissioning Group concerning RW a 78-year-old man, suffering from vascular dementia. On any view he is at the end stage of this remorseless condition. RW was able to live in his own home for much longer than had been contemplated. There were, no doubt, many reasons for this but two emerge distinctly. Firstly, he has a will of steel, as the evidence has demonstrated both at this hearing and at the hearing twelve months ago before Parker J.
I am satisfied that RW has fought to live. He has wanted to be at home and his vigour and indominable spirit has contradicted the expectation of the doctors who gave evidence before Parker J in April 2018. At that hearing a dispute had arisen as to whether it was in RW's best interest to continue to receive Clinically Assisted Nutrition and Hydration (CANH), via a naso-gastric tube (NG tube). Parker J concluded that it was not in his best interest and made a declaration to that effect. An appeal against her decision was unsuccessful (see Re: RW [2018] EWCA Civ 1067). I doubt any of the professionals involved in that hearing would have envisaged a hearing at the end of March 2019 with RW still alive. RW is represented today by the Official Solicitor. No transcript was prepared in relation to Parker J's judgment. As is my practice when an ex-tempore judgment is required, I have asked counsel to make an agreed note, refined it in accordance with the principles in, Piglowska v Piglowski [1999] UKHL 27 and approved it in order that it can be placed in the public domain with reasonable expedition.
The second reason that RW has been able to live as long as he has at his home is due to the love, care, sensitivity, and commitment of his family, his boys, but chiefly PT (his youngest son). In this court room, this afternoon, PT has brought his father's personality into the hearing. This has included not only RW's strengths but his weaknesses too. As RW declined in his capacity to cope with life independently, his son PT, at every stage, rose to the new challenge. That deterioration I have no doubt would have been slow and inexorable, but it is obvious that there are landmarks within the process.
PT told me with absolute clarity of recall about an occasion, now years ago, when it dawned upon him suddenly and clearly, that his father had not been eating. He remembers it because it called for a shift in the pattern of care RW required. PT had regularly been bringing his father food, which he left in the fridge for him but he told me how, one afternoon, he arrived and discovered the fridge was still full. He was concerned that his father had been confused and had been trying to eat food directly from the freezer.
Thereafter PT not only brought the food but prepared it and ensured his father ate it whilst he was there. It sticks in his mind, no doubt for many reasons, but I suspect it was a day that had an impact on PT's own life. It is clear that he recognised that he would have to be significantly more involved in his father's day to day care. As PW (another brother) has said, PT shares many of the characteristics of his father. PW, with some sensitivity, in communicating the similarity of their character profiles was able to communicate that both men are strong minded, uncompromising, dogged and very determined. I have certainly seen those characteristics in PT during the hearing. I pause for a moment to record that as PT was telling me about his father, his approach to life and his personality generally, he illustrated an occasion when, at the early stages of his dementia, he had taken him on holiday to Israel. This had been a country that RW very much wanted to see and it was obvious, as PT recounted the story, that he recognised that time was limited. He described how one afternoon, swimming in the Dead sea, his father swam too far out, rather dangerously and against the protestation of the life guard. Both brothers laughed together, in court, as PT related this story, particularly when PT said it was the sort of thing their father would do even before the dementia. That was the way he was.
As is plain from the judgment of the Court of Appeal, Parker J had identified RW as ‘a fighter’. I agree. So too is PT. He has been absolutely determined to keep his father alive. RW survives today because of this coalition of willpower.
There is voluminous evidence that at home, RW was cared for, practically, in a way which is entirely redundant of any criticism. Though carers were going in to the home every day, the reality is that PT has cared for his father almost single handedly for many months. He has been kept comfortable, clean, kempt and well cared for. His dressings were changed by PT, he was turned by PT, he was washed and cleaned by PT and no task has been too onerous or too intimate. Every act of care has been an act of love and requires to be identified as such.
But what is clear is that PT has strenuously objected to a regime that he regarded as slowly starving his father to death. This he sees to be the reality of the earlier court orders. For PT the preservation of his father's life is a moral obligation. It matters not, to him, that his father's condition is futile nor that the preservation of it may merely serve to continue pain. Since RW returned home to his son's care without any means of artificial nutrition or hydration PT has provided these by any means he could. He prepares small syringes of water, moist trifles, soft custard tarts which he considers his father enjoys. His objective is to keep his father alive.
But none of this occludes the simple fact of RW's condition. He is in end stage vascular dementia. Throughout May of last year, it is noticeable that the range of professionals admitted to RW's home, gradually began to fall away. This occurred entirely because in his stress, anxiety, and driven by his fear for his father's survival PT was aware that the situation was becoming very difficult to manage. PT can undoubtedly be extremely intimidating to those who have not had, or taken the time to try and understand the man he is.
The carers found him difficult, the nurses found him aggressive. Eventually, the nurses declined to attend and the GP eventually took RW off his register. At some time, I'm not entirely clear when, RW put on a cycle helmet with a fitted camera, videoing his interactions with the professionals who visited the home. He did so because he had become hostile and litigious in his mindset. On some intellectual level, for he is a bright man, PT knows how he comes across to people. He is not able to do anything about his behaviour. In my assessment he has some insight into it but has done nothing to tackle it. It is triggered by anxiety and panic. It also requires to be said that it has never resulted in any incident of physical aggression, nor does PT have any record for violent offending.
Concerns continued throughout May and are catalogued in the report of MW, the director of Joint Commissioning at the Clinical Commissioning Group (CCG). They relate to the catheter; the obtaining of catheter bags and they reflect PT's increasing loss of patience in the care given by the care agencies. Matters came to a head, eventually, as inevitably they were bound to, when on 30th June 2018, the family called the out of hours doctors to report that RW's lower leg had become very discoloured and was deteriorating. PT told me about this, in detail, in his evidence. I should record that he often speaks with remarkable and occasionally quite alarming candour.
I am not sure, but I suspect it is PT who called the out of hours' doctor. PT told me, in evidence, that he was concerned by the striking change in the appearance of his father's leg. It had become swollen and discoloured. He told me that he realised he had not been doing the right thing. Faced with this realisation and notwithstanding his complete resistance to engaging with medical services PT was able to suppress his anxieties and to call the ambulance. This is significant, it illustrates PT's capacity, at the moment of crisis, to put his father's needs above his own fear. It reveals the substance of who he is behind the loud and intimidating behaviour.
Characteristically, he was angry and voluble in the way he behaved. I look at what he did and not the manner in which he did it. Following the admission to hospital, RW was returned home and PT resumed caring for him. I should record that on 11 July, Dr C who is the palliative care consultant noted the condition of RW's left leg. She described the lower half as ‘ischemic’ to the extent that it had become demarcated. There did not appear to be wide systemic effect, nor did there seem to be superadded infection to the limb that was being devitalised. In layman's terms it was dying. Arrangements were made to provide dressings and somebody (he cannot...
To continue reading
Request your trial