Is it compulsory to apply to the court to withdraw Clinically Assisted Nutrition and Hydration (CANH) from a person in a Persistent Vegetative State (PVS) or Minimally Conscious State (MCS)?
No, says the Court of Appeal (CA) in an appeal from an order of Mr Justice Charles, sitting in the Court of Protection, dated 24 November 2016.
On 31 July 2017 the CA handed down its judgment in the case of Director of Legal Aid Casework & Ors v Briggs.
Briefly, Mr Briggs was involved in a road traffic accident on 3 July 2015 from which he sustained serious injuries, including a traumatic brain injury. Mr Briggs did not recover, and at the time that his case came before the courts, he was in a MCS. You can read our earlier blog post on Briggs’ case.
The proceedings before the court, which were subject to the appeal, concerned the following:
- Whether, in his MCS, it was in Mr Briggs’ best interests to continue to be given CANH – this was an application brought by the NHS trust providing care to Mr Briggs, as there was disagreement between the treating team and Mr Briggs’ family on this issue.
- An application made by Mr Briggs’ wife under section 21A of the Mental Capacity Act (MCA) where she asked the court to determine that it was not in her husband’s best interests to be provided with life sustaining treatment in hospital and to be deprived of this liberty for that purpose. The application was made under this particular section in order to receive non means tested legal aid.
The CA has confirmed that there is no legal requirement to apply to the court in all PVS and MCS cases for a declaration to withdraw CANH, as appeared to be the requirement in Court of Protection Practice Direction 9E. Therefore, decisions to withhold or withdraw CANH can be lawfully made in a hospital setting where there is agreement between a patient’s relatives and their doctors.
Cases should be brought to court where there is disagreement either between relatives and treating clinicians or within the patient’s treating team. Where there is agreement to withdraw treatment the incapacitated patient’s clinicians will be able to rely upon the provision of section 5 of the Act which provides immunity from civil and criminal liability in performing acts in connection with care or treatment.
In addition, the CA confirmed the position, as set out in the case of Ferreira v HM Senior Coroner for Inner South London and Others, that where a patient was so ill that they were at a risk of dying if they were anywhere other than in hospital (so they had to be in hospital in order to receive treatment) they were not deprived of their liberty - an application under section 21A of the Act to challenge a deprivation of liberty in those circumstances would not be appropriate. It did go on to point out however, that as treatment progresses and the patient’s condition improves then their ongoing care could become a DOL, such that a standard authorisation or court order would be required.
Although the judgment is 28 pages long and runs to some 114 paragraphs the court’s ruling is neatly encapsulated at paragraph 108:
“The proper approach to a case where the central issue is medical treatment (serious or otherwise) following Ferreira is therefore as follows:
i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P's best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA.
ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.
iii) Where, as a consequence of receiving life saving treatment, P is unable to leave hospital, that is not a deprivation of liberty which falls foul of Article 5(1). A standard authorisation is not therefore required and any application in relation to treatment will properly be made under s.16 MCA.
iv) If, as a consequence of ensuring that P receives the treatment that is in his or her best interests, P will become subjected to a deprivation of liberty of a type that falls within Article 5(1), then there must be authorisation for that deprivation of liberty:
a) If already in hospital or in care. under Schedule A1 (or S4A(5)): or
b) Pursuant to a court order under section 4A(3) MCA.
v) The Sch. A1 decision will be made pursuant to para. 16 on the basis that the proposed deprivation of liberty is in P's best interests, necessary and proportionate; conditions of the type envisaged by the DOLS Code of Practice can be recommended if necessary.
vi) If there is a disagreement as to whether there should be a standard authorisation, or in relation to the conditions attached to such an authorisation, then the matter can be brought to by way of an application under s.21A to determine any question relating to the authorisation and to make any appropriate order varying or terminating the authorisation. Clinical issues in relation to treatment will remain in the hands of the treating physicians.”
In terms of Practice Direction 9E, the court said this did not set up any legal obligation for hospitals to apply to the court in all PVS and MCS cases. It was merely guidance and should not be interpreted as having introduced a requirement that all cases where a decision is to be made about the withdrawal of CANH must come before a court.
Doctors are now required to take into account both the MCA Code of Practice (paragraphs 5.29 – 5.36 in particular) and the CA’s judgment in Briggs when deciding to bring these types of cases to court.
Do get in touch if you would like to discuss the Briggs’ decision and its implications for current and future serious medical treatment cases. Given the enormity of the decision to be made, we would advise proceeding cautiously when weighing up whether your medical treatment case requires making an application to the Court of Protection.
Counsel at Serjeants' Inn chambers are aware of another case due to be heard on this point so we will keep readers posted when we hear more about this. In their recent blog they highlight that the whole purpose of bringing a case before the court is to protect P. They pose the question - where research has shown that there is a rate of misdiagnosis of PVS of over 40 per cent, can it ever be said by the treating team and the family that there is no doubt as to whether withdrawal of CANH is in P’s best interests?
Please do not hesitate to contact us to discuss any queries you may have.