M v Mrs. N (by her litigation friend, the Official Solicitor) (1ST Respondent) Bury Clinical Commissioning Group (2ND Respondent) A Care Provider (3RD Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden,M |
| Judgment Date | 19 November 2015 |
| Neutral Citation | [2015] EWCOP 76 |
| Court | Court of Protection |
| Docket Number | Case No: COP 126735597 |
| Date | 19 November 2015 |
[2015] EWCOP 76 (Fam)
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
SITTING AS A JUDGE OF THE COURT OF PROTECTION
Case No: COP 126735597
Mr. P. Patel (instructed by Irwin Mitchell) for the Applicant
Mr. D. Lock QC & Ms. Z Leventhal (instructed by Official Solicitor) for the 1 st Respondent
Miss K. Gollop (instructed by Hempsons Solicitors) for the 2nd Respondent
Mr. V. Sachdeva QC (instructed by Brown Jacobson) for the 3rd Respondent
Hearing dates: 2 nd, 3 rd, 4 th & 6 th November 2015
This is an application made pursuant to s.15 of the Mental Capacity Act 2005 (MCA) for a declaration determining whether it is in the best interests of Mrs. N to receive life sustaining treatment by means of Clinically Assisted Nutrition and Hydration (CANH) currently provided through a percutaneous endoscopic gastrostomy (PEG) tube.
The application is brought by M who strongly believes that the continuation of this intervention is contrary to her mother's (Mrs. N) best interests. Mrs. N lacks capacity to litigate or indeed in any aspect of decision making. Mrs. N, now 68 years old is profoundly impaired both physically and cognitively in consequence of the progressive degenerative impact of Multiple Sclerosis. It is now 23 years since Mrs. N received her diagnosis. It goes without saying that both the medical and legal landscape was profoundly different at that time. Despite the fact that N has had access to some of the most eminent practitioners in the relevant areas of medicine, that has not been able to protect her from the ravages of this condition. Multiple Sclerosis is a neurological disorder which causes myelin, the substance covering the nerves, to be destroyed. As Professor David Neary foreshadowed in his early consultations with Mrs. N the progression of the disease varies and is very difficult to predict.
Background
I have debated whether it is strictly necessary for me to review the development of Mrs. N's condition in this judgment. My instinct has been to place respect for Mrs. N's privacy and the protection of her dignity as the priority. Ultimately however, the remorseless progression of this disorder and Mrs. N's responses to each of the degenerative privations it has inflicted on her are part of the broad canvass of evidence which inform my ultimate decision. It is important that my reasoning is both transparent and uncompromised. Accordingly, I have concluded that I must, at least summarily, set out some of the key features of the medical background. It makes distressing reading. To see so many painful years reduced to a forensic chronology will be distressing to the family despite the fact that all the information is included within the court papers, much of it has been considered and analysed in court and of course the family have lived through it all.
Initially the physiological development of the disease was slow. However, Mrs. N found the diagnosis extremely difficult to cope with, her family consider that she became profoundly depressed, she repeatedly told her son that she would 'rather be dead'. It may be that for sometime prior to her diagnosis the disorder had begun to have its effect on her general functioning. Mrs. N's behaviour became challenging, unpredictable and increasingly difficult for her family to cope with. Between 1988 and 1990, Mrs. N's relationship with her husband deteriorated dramatically leading to separation and divorce. Mrs. N, I have been told, never entirely reconciled herself to the breakdown of her marriage. An unexpected fall in the street around the time of her divorce in 1991 led Mrs. N to consult her doctors and in due course to receive the diagnosis.
With the settlement from her divorce Mrs. N purchased a small bungalow for herself. As I understand the history, her daughter M, then 15 years of age, moved to live with her father. All her family told me that Mrs. N resisted her diagnosis, she refused to use her sticks, she found the Zimmer frame provided for her to be deeply repugnant. In the home she balanced precariously between the furniture, on one occasion falling whilst alone and injuring herself significantly.
Gradually Mrs. N's speech became slurred, a development which irritated her profoundly. Within six years of diagnosis she became wheel chair dependant, struggled with concentration, experienced rapid mood changes and difficulties with her memory. Her power to communicate deteriorated rapidly. Her son (Z) bore the burden of the responsibility. He told me in evidence that for far too long he was resistant to his mother entering a specialist unit or care home. The situation was intolerable: Mrs. N screamed out at night disturbing and frightening her neighbours. She was discovered, on one occasion, sitting in front of the television bleeding significantly from the back of her head without any awareness of it. Z provided a regime of carers but Mrs. N would lash out at them aggressively both verbally and physically. In her prime I was told that Mrs. N could be withering and coruscating in her condemnation of people, certainly the carers felt the full sting of her articulate wrath. Perhaps unsurprisingly her friends drifted away, though her family told me that the gardener, Brian, continued to be kind and supportive and that Mrs. N thought highly of him.
It is difficult to be precise about dates in this account of the background history. The family were under strain, much of this is now a long time ago. I remind myself that M was very young at the time. Review of the medical records help anchor the chronology but the dates there are not always precise, being frequently dependant on a confused history. None of this really matters because the wider picture tells its own story.
Mrs. N and her family are Jewish. Z was able to garner help from the Jewish Federation and local social services who were patient and thoughtful in their support. Sometimes their staff were greatly challenged by Mrs. N's behaviour. By 1997 (i.e. only 6 years after the diagnosis) Mrs. N's life had changed beyond recognition. She is recorded as falling regularly at that time. Documentation relates an incident in May 1997 in which it was thought that Mrs. N had been banging herself causing significant bruising. Around this time Mrs. N developed difficulties with continence which, sadly, escalated quickly. Occupational therapists endeavoured to assist and to improve access to the home but Mrs. N was resistant to help and resentful of what she regarded as an invasion of her privacy. She loathed her wheel chair, at least initially.
By May 2000 the documentation suggests that the Jewish Federation were assisting with the possibility of identifying a care home. It is not entirely clear what Mrs. N's view on this option was at that stage. By June 2000 she was regularly described as being lonely. I note that in September 2000 the records reveal that Mrs. N could not walk to a chair, could not work her buzzer, would not use her Zimmer frame, cried a lot and was prone to falls. Though in my judgement the situation was barely manageable, the family, especially Z, continued to try to keep Mrs. N in her own home. They were motivated by a strong desire to preserve some semblance of independence for Mrs. N for as long as they could and, if I may say so, notwithstanding real hardship and distress to themselves.
In December 2002, the existing carers refused to return to the home, but new carers were employed. Mrs. N continued to fall regularly. It was often difficult for the carers to get her back into her wheelchair. There were occasional periods where matters were more manageable. Mrs. N responded well to the regular home care. She tried, albeit without much enthusiasm, according to medical records, to manage the hoist for transfers. By May 2004 Mrs. N had become doubly incontinent, she was frequently in low mood, screaming, crying and hitting staff. By October 2004 she was very weak, unable to breathe well but still extremely uncooperative. In September 2005, a period of respite was arranged, but by March 2006 it seems Mrs. N's behaviour had escalated such that she was considered to be violent to her carers. She was prescribed medication for her behavioural problems and depression. I note that the medical records reveal her to be on anti-convulsant medication to manage epilepsy. A review by a consultant in rehabilitative medicine, Dr. F. Morcos, in September 2006, identified the following, which I summarise:
i) Severe cognitive impairment;
ii) Inability to communicate normally;
iii) Increased spasticity to limbs resulting in increased deformity and inability to sit in the wheelchair;
iv) Incontinence of urine and faeces;
v) Difficulties in swallowing, such that she was drinking fluid and mashed food;
vi) Significant epilepsy.
By September 2007 it was clear that Mrs. N was not taking in enough nutrition, even though she was by this time living permanently in a care home. Her weight was 31.9Kg with a Body Mass Index of 13Kg/m2. A swallow assessment was undertaken in October 2007. In January 2008 a PEG tube was placed, as a mechanism for supplementing normal fluid and puréed diet. The modified nutritional regime enabled Mrs. N to gain weight. Throughout 2009 Mrs. N appears to have remained at broadly the same level, though the information available is limited. By early 2010 however, it was clear that...
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