M (by her litigation friend, Mrs B) v a Hospital
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 20 September 2017 |
| Neutral Citation | [2017] EWCOP 19 |
| Court | Court of Protection |
| Date | 20 September 2017 |
[2017] EWCOP 19
IN THE COURT OF PROTECTION
The Honourable Mr Justice Peter Jackson
Victoria Butler-Cole (instructed by Irwin Mitchell) for M
Parishil Patel (instructed by Capsticks) for the Hospital
Bridget Dolan QC and Susanna Rickard provided written submissions on behalf of the Official Solicitor at the invitation of the Courts
Hearing date: 22 June 2017
Judgment date: 20 September 2017
IMPORTANT NOTICE
This judgment was handed down after a hearing in public. It can be reported, provided that the terms of a reporting restriction order made under the transparency protocol on 22 June 2017 are complied with. That order prevents the identification of Mrs M or her family members or the hospital in which she has been treated. Failure to comply with the order may be a contempt of court.
JUDGMENT: M (Withdrawal of Treatment: Need for Proceedings)
Introduction
These Court of Protection proceedings, which began on 27 April 2017 and came to a final hearing on 22 June, concerned M, a sufferer from Huntington's disease. Although they were dressed up as a challenge to a standard deprivation of liberty authorisation, they really amounted to a far more profound request for the court "if required" to determine that it would be in M's best interests not to continue to receive clinically assisted nutrition and hydration (CANH), with the consequence that she would die. The application was supported by M's family, her clinicians, and an external specialist second opinion.
At a public hearing on 22 June, I made the orders requested, giving short reasons and reserving fuller judgment. On 24 July, CANH was withdrawn from M, who then received palliative care, and on 4 August she died. She was 50 years old at the time of her death.
I express my sympathy for the great sadness felt by M's family and carers.
This judgment is given:
• To explain why CANH was withdrawn from M, a person in a minimally conscious state (MCS).
• 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.
• 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:
• 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.
• 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.
• 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.
The history
As a child, M was, according to her mother, Mrs B, "full of life". Her husband, who she met as a teenager in 1984, recalls her as "bright, energetic and youthful". Sadly, M soon began to show the symptoms of her condition, but she and her husband went on to have two children, now adults. Their younger child, a son, is also afflicted by Huntington's disease and is cared for at home by his father.
Huntington's disease is an inherited neurological condition that is progressive, incurable and ultimately fatal. In 1994, M became permanently resident in the respondent hospital, though she was still able to go out for short periods. By 2003, she was no longer able to go out at all and from then on, she was dependent on CANH by PEG tube. For her last 10 years, she was bedridden, apart from occasional times when she was hoisted into a wheelchair for short periods.
Both before and after she became a permanent hospital patient, M received the most devoted care from her carers and from her family, who witnessed her inexorable decline over a period of more than 25 years. While she was living at home, her husband was her main carer. When she went into hospital, her mother, Mrs B, visited her several times a week, and her other family members visited very regularly.
By the time of the hearing, M's mother Mrs B described her in this way:
"M is rarely awake and all I can describe as is 'a body on a bed'. She is unconscious for the majority of the time. Even when she is awake, M makes no sign of recognition and does not look at me or engage with me. I find it really distressing because even when she goes to sleep, her eyes do not fully close and she looks so uncomfortable. You can see the whites of her eyes but her eyelids do not shut.
The nurses and carers at the hospital try their best to provide M with the routine of care. They put the TV on and radio on, and sometimes she is put in a wheelchair and sat out in her wheelchair in a communal area. However, she never exhibits any signs of awareness, and it is no longer apparent when she is content or enjoys doing something or not, or whether she has any sense of feeling, smell or hearing whatsoever.
When I visit M, I always enter the room cheerfully and say hello to her, I tend to her bedding, or change the TV channel, and I will often put on DVDs that I know she used to really enjoy, such as Dirty Dancing and Billy Elliott. I do this out of a sense of routine, and just in case she has any awareness left. However, for around 18 months now I have seen nothing which makes me think she has any awareness of what is going on whatsoever. She never makes a reaction to a change of TV programme, or when myself or her stepdad look directly at her or lean over her.
I continue to visit M at least 4 times a week. I insist that I should do her laundry. As her mother, I want to ensure that she is clean and comfortable and that her clothes smell clean and like home, rather than coming from the hospital launderette. Going to see M and caring for her is a huge part of my life. For years now, I find myself getting up, and instead of going to work like anybody else, I have gone to the hospital to see my daughter."
Mrs B continues:
"M is showing no signs of being aware of her surroundings at all, she is currently not really 'living' any life at all, and to keep her alive by forced and artificial treatment at this stage seems cruel…
I am aware that M's treating clinicians have now come to the same conclusion that it would not be in M's best interests for treatment to continue, and that they agree I am acting in M's best interests by bringing this application. I am extremely grateful to the clinical and care team for all that they have done to support M over the years.
It is incredibly difficult, as M's mother, for me to reach the conclusion that it is in her best interests for treatment to stop and palliative care instead to be provided. However, I do not feel that M would decide now, if she was able to, that the current treatment is benefiting her in any way, and her life is being prolonged for no purpose, where she has no quality of life. I have always been incredibly close to M, and in fact many people used to comment how we were so similar in mind-set and temperament. I am of the view that if M was able to make a decision right now, she would not want treatment to continue.
This application is hugely distressing and emotional for me. I love M with all my heart and have spent almost my entire life caring for. I have been so close to M and feel that I know her inside and out. She would have hated to be in the position she is in now.… This is not the life she would have wanted to continue living."
M's husband supports the views of Mrs B. He writes:
"M does not recognise me or the children and her quality of life is virtually non-existent. I feel that the PEG feed is keeping her alive, with no possibility of change or cure – it is simply causing M to suffer. When she was diagnosed, we were told she would live for 18 – 19 years, yet 25 years on she is still living with this terrible condition.
When M was diagnosed, I recall her telling me that she would not want to live with Huntington's for years and years, and although we did not talk about her end-of-life care, I also believe that she would not have wanted to live in this way, considering the type of person she was. She was vivacious and full of life before the onset of her illness, and in my view, she would not have wanted to be kept alive with no hope of recovery or improvement."
M's adult daughter, a healthcare professional herself, supports the views of her grandmother. She writes:
"Currently, my mother can't do anything for herself and I don't think she even knows we are there when we visit her any more. I continue to visit her weekly but she can't make any eye contact with me anymore and doesn't seem to recognise me at all. My mum used to always enjoy seeing her family, but that enjoyment has now been taken away from her and she doesn't seem to have any quality of life at all.
My mother never mentioned her views or wishes as to her end of life to me. I was very young at the initial stage of the disease and I don't think she wanted to upset me. We always stay positive around her, even when she became more unwell.
However, I believe that my mother would not have wanted to suffer in this way and that it is not in her best interests to be kept alive when she's just suffering and no longer seems to have any awareness. She isn't able to enjoy activities, or even recognise people in the room. I feel that it would have really distressed her if she knew that she would be left...
To continue reading
Request your trial
-
An NHS Trust and Others v Y (by his litigation friend, the Official Solicitor) and another
...for court resolution, avoiding undue cost and delay. 64 In In re M (Incapacitated Person: Withdrawal of Treatment) [2017] EWCOP 18; [2018] 1 WLR 465, the court was concerned with the withdrawal of CANH from a woman who was suffering from Huntington's disease and was in a minimally consciou......
-
E (A Child)
...[2018] 2 FLR 1028Lambert v France CE:ECHR:2015:0605JUD004604314; 62 EHRR 2, GCM (Incapacitated Person: Withdrawal of Treatment), In re [2017] EWCOP 19; [2018] 1 WLR 465; [2018] 2 All ER 551, Ct of ProtectionNielsen v Denmark CE:ECHR:1988:1128JUD001092984; 11 EHRR 175Portsmouth NHS Trust v W......
-
NHS Trust v Mr Y (by his Litigation Friend, the Official Solicitor) and Another
...the subject of a judgment by the Court of Protection in another case, following detailed submissions by the Official Solicitor: Re M [2017] EWCOP 19. 21 I refused the application for an adjournment and/or transfer for the following reasons: i) The matter has already been considered and dete......
-
Z v RS (by his Litigation Friend the Official Solicitor)
...of Treatment) [2011] EWHC 2443 (Fam); [2012] 1 WLR 1653; In re M (Incapacitated Person: Withdrawal of Treatment) [2017] EWCOP 18; [2018] 1 WLR 465 and In re Briggs (Incapacitated Person) [2018] Fam 27 Finally, the conclusion that it would not be in RS's interests to be transferred to Pol......
-
From ‘Doctor Knows Best’ to Dignity: Placing Adults Who Lack Capacity at the Centre of Decisions About Their Medical Treatment
...(2017) 43 Journal of Medical Ethics 435. Nb while this article wasin press, in Re M (Withdrawal of treatment: need for proceedings) 2017 EWCOP 19, Peter Jackson Jheld that, ‘it was not necessary as a matter of law for this case to have been brought to court,but given the terms of Practice D......