Clarity in the Court of Protection

In a new decision the Court of Protection answers the question -  at what point does a decision stop being binding? In a follow up decision in An NHS Trust v AF Mr Justice Poole looks at what to do where the court has previously considered an issue.

Mr Justice Mostyn in An NHS Trust v AF ( March 2020) decided that it was in the best interests of AF, an 80-year old man who suffered a stroke in 2016 to continue to receive Clinically Assisted Nutrition and Hydration (CANH) via his PEG tube. His daughter had argued that her father would not have wished to continue to be fed. However, the decision was not appealed by her.

AF’s case came before the CoP again because his PEG had fallen out. The applicant NHS Trust sought a declaration that it was in AF’s interests to re-insert the PEG. The Official Solicitor supported the application but AF’s daughter opposed it.

The PEG tube had been in place since 2016. PEGs were noted to usually last for two to four years before requiring replacement.

Brief history

Since March, AF had continued to live at his care home receiving CANH using his PEG. In October the PEG fell out and he was taken to hospital where, a feeding tube was inserted to maintain the PEG tract but it was not sufficient to sustain life. Following an order of Mr Justice Williams on 16 October, a balloon gastronomy (BG) was inserted and AF was discharged back to his care home. A BG will typically last three months before having to be replaced.

Unfortunately AF was admitted again to hospital on 28 October with pneumonia following which antibiotic treatment was commenced. The expert evidence before the court confirmed that AF was responding well to treatment and that it was likely that he would become clinically well enough to undergo re-insertion of a PEG tube towards the end of his current in-patient stay, and “with continued CANH he could live for a few more years yet.”

The court was asked to declare that it was lawful and in AF’s best interests to undergo the insertion of a PEG once medically fit. It was agreed by all, as it was before Mr Justice Mostyn, that AF lacked capacity to make the decision.

AF’s daughter remained of the view that it was not in his best interests to have the PEG re-inserted or to continue to have CANH. She went further, contending that it was not in his best interests to receive any active treatment and he should be placed on the end of life pathway and his BG should remain.

The decision

The court carefully reviewed the March decision of Mr Justice Mostyn, including the 929 pages of written evidence that were before him – the question for the court was the extent to which, if at all, the court’s “evaluation of AF's best interests should be circumscribed by the findings made by Mr Justice Mostyn seven months ago”.

The court noted six key points at paragraph 22:

“…both principle and good practice point to the same approach to this application in which the court is being asked to make a best interests evaluation only a few months after another court has made a determination of best interests in respect of a similar decision, concerning the same P, and after a full hearing.

1. There is no strict rule of issue estoppel binding on the court.
2. Nevertheless, the court should give effect loyally to a previous judicial finding or decision that is relevant to the determinations it has to make, and should avoid re-opening earlier findings that cannot be undermined by subsequent changes in circumstances. An example would be a finding that P lacked capacity at a particular point in time. Such findings, if not successfully appealed, should generally only be re-opened if new evidence emerges that might reasonably have led the earlier court to reach a different conclusion.
3. Where there has been no material change of circumstances subsequent to a previous judgment, no new evidence that calls for a re-opening of the earlier findings, and the earlier evaluation of best interests clearly covers the decision that the new court is being asked to consider, appropriate case management might involve the court summarily determining the new application.
4. Determinations of capacity and best interests are sensitive to specific decisions and circumstances, therefore the court will exercise appropriate restraint before making any summary determination.
5. If the decision or circumstances that the new court is being asked to consider are not clearly covered by the earlier judgment, or there has been a material change of circumstances or new evidence that calls into question the previous findings, the court should manage the case in a way that is proportionate having regard to the earlier judicial findings and decisions.
6. In dealing with the new application proportionately, the court's focus will be on what has changed since the previous ruling, and any new evidence. It should usually avoid re-hearing evidence that has already been given and scrutinised in the earlier proceedings.”

The parties agreed that the failure of the PEG in October was a “material change in circumstances that had not been expressly contemplated” by the court in March 2020 and that therefore the decision to reinsert the PEG was a new decision for the court to consider. Therefore, the focus of the evidence was on the developments since Mr Justice Mostyn’s judgment. But the court gave “significant weight to Mostyn J’s very firm conclusion that, at the time of judgment, it was in AF’s best interests to receive continuing CANH through his PEG.”

In short, the court came to the conclusion that it was in AF’s best interests to undergo re-insertion of a PEG: Mr Justice Poole delivering the judgment said he was “quite satisfied”.  He further added at his final paragraph:

“The court cannot predict every treatment decision that may have to be made over the remainder of AF's life. However, all parties agree that there ought to be an ongoing care plan, in accordance with guidance from the BMA at section 2.7 of its document, "CANH and adults who lack the capacity to consent – guidance for decision-making in England and Wales." 

The court was influenced by the fact that the daughter had, sadly, not been able to see her father since December last year due to Covid (as she lived in Spain) so they were able to hear more up to date evidence from care home staff and the Official Solicitor about AF.

Key takeaway

Health and care professionals now have clear guidance for cases where the CoP has made a decision on an issue that has previously been before the court. The decision serves also as a useful reminder for CCGs to ensure that advance care planning is put on the agenda of future best interests meetings.

Do get in touch with Katrina McCrory or our wider Court of Protection team if you would like to discuss any of the issues raised here or would like support on a CoP matter.