PW v Chelsea and Westminster Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Peter Jackson,Lady Justice Arden |
| Judgment Date | 11 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1067 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: 2018/0922 |
| Date | 11 May 2018 |
[2018] EWCA Civ 1067
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
2018/PI/10770
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lady Justice Sharp
and
Lord Justice Peter Jackson
Case No: 2018/0922
Katie Scott (instructed by Capsticks Solicitors) for the First and Sixth Respondent
Simon Cridland (instructed by RW by his Litigation Friend the Official Solicitor) for the Second Respondent
Samantha Presland (instructed by Appleman Legal) for the Applicant
The Third, Fourth and Fifth Respondents appeared in person
Hearing dates: 28 April 2018
Judgment Approved
This application for permission to appeal, with the appeal to follow if permission is granted, has been brought on as a matter of urgency at my direction made on 19 April 2018. At that stage I ordered there be a temporary stay of the order of Parker J made on 13 April 2018 pending the determination of the application for permission to appeal. The parties and their representatives have made considerable efforts to prepare the matter for this court at short notice; the applicant's legal team have acted pro bono, and we are very grateful to them.
The case concerns RW. RW is 77 years old and the father to four sons: the applicant PW, and PLW, BW and MW. RW is currently in the Chelsea and Westminster Hospital (the Hospital). The Clinical Commissioning Group (CCG) for RW's home area was joined to these proceedings on the direction of Parker J on 28 March 2018.
There is no transcript available to us of the two judgments given by the judge orally in court on 13 April 2018 and which are the subject of this application; the first of these concerns the judge's determination of RW's best interests pursuant to section 4 of the Mental Capacity Act 2005 (the 2005 Act) and the second, concerns the issue of the scope of the transparency order made by the judge covering the proceedings below.
To say the absence of transcripts is regrettable rather understates the position. This is not a criticism of the parties. We are told that PW's legal team were informed that legal aid to cover their conduct of the proceedings had been refused after judgment was delivered on 13 April 2018. This meant there would be no legal aid funding available to pay for transcripts for the purpose of mounting an appeal. In the event, the transcripts were ordered on 21 April 2018 (after directions made by this court that transcripts should be obtained if possible in time for the hearing before us) because the Trust and the Official Solicitor agreed to pay for them. Even so, and despite the nature of this case it has apparently not been possible for the transcripts to be produced in time for this hearing. We have instead, a reasonably full, but not a perfect note of the judgments below, agreed between the parties and approved by the judge; in the circumstances, I have set out rather more of the facts than might otherwise have been necessary.
RW has end stage dementia. What this means in general terms is explained by the evidence from his treating consultant, Dr L1, a consultant in acute medicine and elderly care at the Hospital.
“…Dementia is a chronic neurological condition resulting in loss of memory and other mental functions. It is progressive and irreversible and will ultimately lead to death. ‘Advanced’ or ‘end stage’ dementia means dependency in basic activities of daily living, limited or absent verbal communication, failing ability to recognise family and problems with appetite to swallowing. Difficulty swallowing is a sign that a patient is generally near the end of life.
Providing an accurate prognosis in patients with dementia is not possible in individual cases, but there are several symptoms which indicate that the patient is at the end of life stage. The necessity for artificial feeding and the loss of drive to eat and safe swallowing reflex is an indicator that end of life is approaching. Prognosis is usually limited to six months to a year.
Pain is common in patients with advanced dementia and the medical research and guidance literature indicates that this is often under-detected and under-treated. The difficulty with end stage dementia is that patients will have difficulties in communicating that they are in pain. It is therefore very important that such patients receive appropriate palliative care treatment. Palliation is ‘alleviation without cure’. It is not treatment, or withdrawal of treatment, but a reprioritisation aiming to provide comfort, relieve distress, minimise treatment burden and respect autonomy. There is no cure for dementia and, on this definition, all treatment provided for dementia is a form of palliation.”
On 6 March 2018 Moor J made a final declaration of incapacity pursuant to section 15 of the 2005 Act (that RW lacks the capacity to make decisions regarding his medical treatment). He also made a transparency order preventing the publication of any material identifying RW or his family or where they lived. By an interim order made on 28 March 2018 Parker J extended the prohibition to include “treating clinicians”.
The matter came before Parker J in the Court of Protection on 28 March 2018 for a contested one-day final hearing and comes before this court because there is a disagreement between RW's sons on the one hand, and the respondent Trust and the Official Solicitor on the other, as to one aspect of RW's medical treatment at the last stages of his life. This concerns the continued provision of clinically assisted nutrition and hydration (CANH) via a nasogastric (NG) tube, that is, a tube passing through his nose and then into his stomach.
Matters relating to RW's treatment other than the retention of the NG tube were originally contentious, but it is not necessary to refer to them now except briefly. Thus, by the time of the hearing before Parker J on 28 March 2018 the parties were agreed it was in RW's best interests to be discharged home into the care of his sons; and the CCG were prepared to provide a measure of support if this were to occur (by daily visits by healthcare professionals, Health Care Assistants (HCAs) and District Nurses (DNs) though the CCG have said that HCAs and DNs would not be able to provide NG tube support). There was agreement that a RIG (Radiologically Inserted Gastrostomy) a small flexible tube passed through the skin into the stomach under x-ray guidance, for the provision of CANH was not in RW's best interests, and there was agreement as to the appropriate “ceiling of care” if RW was discharged home without a RIG, in respect of the provision of CPR, vasopressor support, inotropic drugs and all types of ventilator support. Whether or not this ceiling of care should include the administration of antibiotics (in circumstances where a RIG had been placed) was contentious at the hearing on 28 March 2018. However Parker J decided it was lawful not to provide antibiotics; nothing now turns on that aspect of her decision, it forms no part of the application for permission to appeal and I need say no more about it. I should add in relation to the RIG that the Trust's fall-back position was that if the court determined CANH should continue to be provided, a RIG was preferable to a NG tube, but that neither was in RW's best interests.
Subject to that, and the terms of the transparency order which I deal with at paras 61 onwards, the sole substantive issue Parker J had to determine was whether it was in the best interests of RW to be discharged home with the NG tube in place or to be discharged home for palliative care and oral comfort feeding, having had the NG tube removed before his discharge.
Background
Before September 2017, RW had been cared for at home. His principal carer was PW, though his other sons helped. There is no issue but that RW's sons are devoted to him and only want what they consider to be best for him.
RW was admitted to K Hospital on 14 September 2017, when a nasogastric tube was inserted. At that stage of his admission he was acutely ill. 1 His sons were dissatisfied with his care there, and in a second hospital to which they transferred him on 28 September 2017. 2 They then transferred him (his second transfer to a third hospital within a matter of days) to the Hospital run by the Trust. Specifically, they brought him to the Accident and Emergency Department of the Hospital on 5 November 2017 and he was admitted on the same day. 3 The NG tube was still in situ.
A detailed account of what occurred thereafter is set out in the Position Statement of the Trust for the final hearing on 28 March 2018. It is unnecessary to set out what is said; it sufficient to say the Position Statement records there were numerous instances where the NG was noted to have come out, necessitating chest x-rays for NG re-siting. Various options for RW's treatment on discharge were discussed between the clinical team caring for RW and the family from 23 November 2017 onwards and withdrawal of CANH was first discussed with the family (BW) on 31 January 2018 and with his other sons a few days later. Further, by the end of January 2018 the behaviour of the sons was such that the Trust placed restrictions on them visiting RW (they were allowed to visit individually for up to 30 minutes at a time) and on 16 February 2018 the sons were told by letter that they were permitted to visit RW on an individual basis during normal visiting hours, but not were not permitted to remain in his room while personal care was being provided. This was because of aggressive
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