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A CCG v AF and others [2020] EWCOP 16

The first contested hearing undertaken by Skype in the COP and Family Courts as a result of the Covid-19 pandemic, concerning whether AF should continue to receive Clinically Assisted Nutrition and Hydration (CANH) through a Percutaneous Endoscopic Gastrostomy tube (PEG) inserted into his stomach.

The hearing concerned whether AF should continue to receive Clinically Assisted Nutrition and Hydration (CANH) through a Percutaneous Endoscopic Gastrostomy tube (PEG)  inserted into his stomach. This followed a stoke which had left him with serious brain damage and consequent immobility and impaired speech. There was no dispute that as a consequence of the stroke AF lacked the capacity to make the decision himself. The issue was therefore whether it was in AF's best interests for CANH to be stopped. AF was able to take in food and drink by mouth, but this was more for the sensory pleasure of taste and texture as it was insufficient to be life sustaining. The judge found that if CANH ceased it would inevitably lead to AF's death. AF's daughter sought the withdrawal of CANH, not because she wanted her father to die but because she believed that it was what he would have wanted AF's GP opposed the application as did the Official Solicitor on AF's behalf. The judgement involves an analysis of past expressions by AF, based on his experience working in hospitals and his care of his wife and disabled daughter (both of whom had predeceased him), that he did not want to be "a body in a bed", the absence of an advance decision [s24-26 MCA 2005] and the reports of his responses to visitors, music, poetry and favourite foods. This led to Mostyn J finding "AF is sentient, cognitively active, emotionally aware and possessed of motor functions, albeit grossly impaired physically and mentally [and]  impossible to conceive that he would ever have written an advance decision mandating being starved to death were he to find himself in his present position.".
He concluded that it was in AF's best interests to continue to receive CANH. This, he acknowledged avoided the need to consider the complex legal and ethical questions which would arise under Article 2.1 ECHR

"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally …"

and with what the judge described as "the somewhat impenetrable meaning" of s4(5) Mental Capacity Act 2005

"Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death."

The case has attracted considerable publicity for another reason. It was the first contested hearing undertaken by Skype in the COP and Family Courts as a result of the Covid-19 pandemic. The judge described how he heard 11 witness over 3 days with the witnesses, parties and legal representatives scattered across the country and it proceeded "almost without a hitch". A more varied set of perspectives appears in articles by Nageena Khalique QC and Sophie Roper, and Celia Klitzinger from Coma And Disorders Of Consciousness Research Centre.

Case summary by Nicholas O'Brien, Barrister at Coram Chambers

Read the full judgment of A CCG v AF and others  [2020] EWCOP 16 on BAILII