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Court of Protection Update (April 2013)

Sally Bradley and Michael Edwards, barristers at 4 Paper Buildings, look at recent decisions on capacity in the Court of Protection.

Sally Bradley, barrister, 4 Paper BuildingsMichael Edwards, barrister, 4 Paper Buildings 








Sally Bradley and Michael Edwards, barristers, of 4 Paper Buildings

A Local Authority v E and Others [2012] EWHC 1639 (COP) concerned E, a 32 year old intelligent and articulate woman suffering from anorexia, borderline personality disorder, alcohol and prescribed opiate dependency, who had previously been detained under the Mental Health Act 1983 ('the MHA'). She had been refusing solid food for over a year. In 2011 E had twice attempted to make advance decisions refusing the treatment now being proposed for her. In July 2011, she signed a document saying that she did not want to be resuscitated or to be given any medical intervention to prolong her life. In October 2011, she signed another advance decision in a standard form, assisted by her mother and her mental capacity advocate. On the same day, she was detained under Section 3 of the MHA and the day after that she was admitted for a two week assessment by Professor L at an eating disorder unit. He expressed the view that her anorexia had moved into a severe and enduring phase but that she could benefit from treatment. At the time of the application to the Court of Protection her care team considered all treatment options to have been exhausted and that it was in E's best interests to die in comfort under a palliative care regime.

The local authority brought the case to the court and the judge, Peter Jackson J, held that (i) E did not have capacity to decide not to eat, (ii) her advance decisions were invalid because she lacked capacity at the time they were made and (iii) it was in E's best interests to be treated, including to be force fed, despite her strongly held wishes to the contrary.

In reaching his decision on best interests the judge held:

"We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know. E is a special person, whose life is of value. She does not see it that way now, but she may in future.' The judge concluded: 'The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced."

At paragraph 5 of his judgment Mr Justice Jackson described E and her situation in these terms:

"E's case has raised for the first time in my experience the real possibility of life-sustaining treatment not being in the best interests of a person who, while lacking capacity, is fully aware of her situation. She is in many ways the opposite of a PVS patient or a person with an inevitably fatal condition. She is described as an intelligent and charming person. Albeit gravely unwell, she is not incurable. She does not seek death, but above all she does not want to eat or to be fed. She sees her life as pointless and wants to be allowed to make her own choices, realising that refusal to eat must lead to her death. Her situation requires a balance to be struck between the weight objectively to be given to life on one hand and to personal independence on the other."

The only two options available to the court were no intervention, with E remaining in the community hospital and being provided with care and pain relief until her death from the effects of starvation or, alternatively, E's immediate transfer, via an intermediate hospital with an intensive care facility, to a leading facility for the treatment of advanced eating disorders ('the specialist hospital') where  she would be stabilised and fed with calorific material via a nasogastric tube or a PEG tube inserted through her stomach wall. Should she resist treatment any resistance would be overcome by physical restraint or by chemical sedation. This process would continue along with appropriate therapy until her weight was restored. However, the judge considered the likelihood of success of this option to be negligible given E's history of treatment so far.

As regards the two advance decisions E made in July and October 2011 in respect of refusing life sustaining treatment, the judge found on the balance of probabilities that E did not have capacity at the time of each decision. He stated:

"Against such an alerting background, a full, reasoned and contemporaneous assessment evidencing mental capacity to make such a momentous decision would in my view be necessary. No such assessment occurred in E's case and I think it at best doubtful that a thorough investigation at the time would have reached the conclusion that she had capacity."

Whilst the October advance decision satisfied all the legal formalities required under section 25 of the MCA 2005 no formal capacity assessment had been undertaken.

The judge carefully weighed the two options when considering E's best interests and decided that on balance it was in her best interests to be fed, by force if necessary, and that interference with her Article 3 and 8 rights were proportionate and necessary to protect her Article 2 rights.

This case contrasts with the decision of Mrs Justice Eleanor King in Re L: NHS Trust v L [2012] EWHC 2741, which is one of the rare occasions where the court has sanctioned the possible withdrawal of nutrition and hydration from a patient suffering from anorexia nervosa thereby reflecting the extreme and unusual circumstances of the case. L was unlikely to survive (in A Local Authority v E and Others [2012] EWHC 1639 there was a 20% prospect of survival) and the proposed treatment was in essence directed towards maintaining her dignity and quality of life as far as possible. The declarations sought by the Trust were predicated on the basis that L was in the closing stages of her life and force feeding was not considered to be in her best interests. A declaration was sought that it was not in the best interests of L to be the subject of forcible feeding or medical treatment notwithstanding that in the absence of such nutrition and treatment she would inevitably die. The court declared that: first, L lacked capacity to litigate and to make decisions in relation to the serious medical treatment at issue, namely (a) nutrition and hydration, and (b) dextrose for hypoglycaemic episodes; secondly, L had capacity to make decisions as to anti-biotic treatment, analgesia and treatment of her pressure sores; and thirdly, In L's best interests, the clinicians were permitted: (i) to provide nutrition and hydration and medical treatment where L complies; (ii) to administer dextrose solution to L despite her objections where immediately necessary to save life; (iii) not to provide L with nutrition and hydration with which she does not comply (all reasonable steps to gain L's co-operation having been taken); (iv) to provide palliative care in the terminal stage of L's illness.

L had spent 90% of the last 16 years of her life detained as an inpatient in specialist eating disorder treatment units, but had made no progress. Forcibly feeding her was highly unlikely to reverse her weight loss and preserve her life and required coercion, restraint or sedation and thus could not be considered to be in her best interests. The experts agreed that no pressure should be placed on L. She suffered from an extremely rare, severe and unremitting form of anorexia nervosa. The prospect of her recovery approached zero. She was now showing signs of irreversible multi organ failure and was drawing towards the end of her life. In January 2012 L's detention under the MHA was rescinded after the eating disorder team concluded that all treatments had been exhausted and compulsory treatment had been shown only to reinforce her eating disorders and increase her disability. L found the idea of force feeding extremely distressing. The only remote possibility of her surviving would be if she agreed to increase her calorific intake, albeit her organs were so damaged the prospect of survival was slim. She did not want to die but was not motivated to achieve recovery. She was described as showing "an inappropriate indifference to matters of life and death". The capacity assessments undertaken concluded that L lacks capacity with regard to treatment options available on the basis that she is unable to weigh up the risks and benefits of such treatment including her spontaneous and recurrent hypoglycemic episodes. Her judgment is critically impaired by a profound and illogical fear of weight gain. Having concluded that L is "unable to make a decision for herself in reaction to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain, namely her anorexia nervosa it fell to the Court to determine what is in L's best interests.

King J stated:

"In my judgment this is one of those few cases where the only possible treatment, namely force feeding under sedation, is not to be countenanced in Ms L's best interests; to do so would be futile, carrying with it a near certainty that it would cause her death in any event. Such a course would be overly burdensome in that every calorie that enters her body is an enemy to Ms L."

The judge accordingly made the declarations sought.

On the 1st March 2013 in the case of Aintree University Hospital NHS Foundation Trust v J & Others [2013] EWCA Civ 65 the Court of Appeal overturned the decision of Peter Jackson J of the 6th December 2012 to refuse to grant declarations that subject to the agreement of DJ's clinical team it would be lawful, being in his best interests, for the following treatment to be withheld in the event of a clinical deterioration: (i) cardiopulmonary resuscitation; (ii) invasive support for circulatory problems; (iii) renal replacement therapy in the event of deterioration in renal function. He refused to give permission to the hospital to place a "Do Not Attempt Resuscitation" (DNAR) instruction on his medical records. DJ's family opposed the Trust application. DJ sadly died on the 31st December 2012 but the Court of Appeal was asked nevertheless to hand down judgment.

DJ suffered a stoma emanating from cancer of the colon from which he suffered in 2001. He was admitted to hospital in May 2012 due to complications with his stoma and acquired an infection whilst in hospital. He eventually suffered from deteriorating renal function and ongoing multiple organ failure and became unconscious. From May to December he suffered acute kidney injuries and multi organ failures. His condition continued to deteriorate and over a period of time he suffered necrosis, pneumonia, septic shock, acute myocardial infarction and a stroke. By the time of the Court of Appeal hearing on the 21st December 2012 DJ "had not managed more than 5 hours of spontaneous breathing since December 5th". The medical evidence was not optimistic and he was assessed as having a less than one per cent chance of ever being discharged from the unit. His medical team gave evidence that attempts at cardiopulmonary resuscitation (CPR) and invasive support would be painful for him and would put him at risk of further complications. The judge decided not to grant the hospital's application as he was not persuaded that treatment would be futile or overly burdensome and he decided that it would not be in DJ's best interests to withhold treatment. Jackson J stated at paragraph 84 of his judgment:

"Although DJ's condition is in many respects grim, I am not persuaded that treatment would be futile or overly burdensome, or that there is no prospect of recovery."

He was not persuaded on the evidence before him that the withholding of the treatments would be in DJ's best interests.

On appeal the hospital submitted that the judge had erred (i) in finding that further CPR would not be in DJ's best interests but failing to grant a declaration to that effect; (ii) in applying a test which required the quality of life to be "truly awful or non-existent"; (iii) in eliding the test of best interests being futile, overly burdensome and/or there being no prospect of recovery and failing to find that that was the case for DJ; (iv) in placing decisive weight on DJ's family's evidence of his likely views; and (v) in finding the pre-condition of there being "a significant clinical deterioration" too uncertain to justify declarations being made.

Lord Justice Ward held that:

(i) The test under the Mental Capacity Act 2005 s.1(5) was simply what was in the best interests of the patient. Jackson J had not allowed his decisions on futility to govern his decision but he had erred in adopting too narrow a view of futility. To decide whether the proposed treatment was futile one had to ask what result the treatment sought to produce. The crucial question was to determine the proper goal for the life-sustaining treatment. The futility of treatment had to be judged in the light of whether the patient would secure any therapeutic benefit which had the real prospect of curing or at least palliating the life-threatening disease from which he suffered. The judge was wrong to look at the past successful effect of such treatment on J without also having regard to the lack of improvement that such treatment would bring to his general health (see paras 33, 35-39 of the judgment).

(ii) Having found that all the treatments, including CPR, could not be said to be futile, the judge erred in finding that in another crisis it was unlikely that CPR would be in DJ's best interests. That was precisely what he had been asked to consider in the hospital's application and conflicted with his previous conclusion (para.39).

(iii) The evidence was overwhelming that the forms of treatment were very discomforting and extremely painful. They could not be said to be not overly burdensome (paras 40-41). Dr G had described them as "very discomforting, they require or usually require the administration of a large amount of anesthetic because they are extremely painful to introduce....cause the heart to have very serious consequences."

(iv) The judge applied the wrong test when considering the guidance in the Mental Capacity Act Code of Practice in deciding that a prospect of recovery meant a resumption of a quality of life that DJ would regard as worthwhile. The focus was on the medical interests of the patient when treatment was considered to sustain life. In the context of life ebbing away, "no prospect of recovery" meant no prospect of recovering such a state of good health as would avert the looming prospect of death if the life-sustaining treatment was given. DJ had a less than 1% chance of ever being released from the Intensive Care Unit. There was no prospect of DJ ever overcoming the multiple organ failure from which he had suffered with exponentially weaker prospects of recovery (para.44).

(5) The court had to try to ascertain DJ's wishes which would, if they were the product of full informed thought, have to recognise the futility of treatment, that treatment would be extremely burdensome to endure and that he would never recover enough to go home. It was in his best interests that it would be lawful to withhold treatment and the declarations should be granted to that effect (paras 47, 50). Ward LJ held that not to treat him may be in his best medical interests but the question remains whether it is in his best interests overall which encompasses medical, emotional and all other welfare issues. The appeal was allowed.