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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> An NHS Trust v AF & Anor [2020] EWCOP 55 (09 November 2020) URL: http://www.bailii.org/ew/cases/EWCOP/2020/55.html Cite as: [2021] COPLR 63, [2020] EWCOP 55 |
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IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
AN NHS TRUST |
Applicant |
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- and – |
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(1) AF (By his litigation friend, the Official Solicitor) (2) SJ |
Respondent |
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Ms Bridget Dolan QC (instructed by The Official Solicitor) for the First Respondent
Mr Peter Mant (instructed by MJC Law) for the Second Respondent
Hearing date: 30 October 2020
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Crown Copyright ©
Mr Justice Poole:
Introduction
1. It is lawful and in AF's best interests to undergo (1) insertion of a PEG and (2) any necessary ancillary procedures, and
2. Such PEG insertion shall not be undertaken until such time as AF is in the opinion of his treating gastroenterology team medically fit to undergo the procedure and that exchanging his present balloon gastrostomy for a PEG is, in the opinion of his treating gastroenterology team, clinically indicated.
4 Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) 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.
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
…
(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11) "Relevant circumstances" are those—
(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant.
"I am strongly satisfied on the evidence, although it is not all one way, that were CANH to be withdrawn AF would not take sufficient food and drink orally to sustain life and would, sooner or later (probably sooner) expire." [3]
And,
"In making the best interests evaluation mandated by section 4 of the Mental Capacity Act 2005 I have clearly decided on the evidence it would not be in AF's best interests to discontinue CANH." [5]
"were granted a brief window of lucidity he would reach the conclusion that he would be better off dead rather than to continue with the limited life that he presently enjoys." [31]
And,
"I have reached the very clear conclusion that it would be categorically contrary to AF's interests for him to be set on the path that will lead to his inevitable death from starvation. This may be a diminished life, but it is a life nonetheless which has, I have said, intrinsic quality and from which AF derives pleasure and satisfaction." [32].
"strict rule of issue estoppel which is binding upon any of the parties in children's cases. At the same time the Court undoubtedly has a discretion as to how the enquiry before it is to be conducted."
If a party wished to challenge a finding made in previous proceedings, the court would be anxious to know not only what the previous finding had been, but the evidence on which the finding had been reached.
"The court's general powers of case management include a power to exclude any issue from consideration and to take any step or give any direction for the purpose of managing the case and furthering the overriding objective (rule 25(j) and (m)). It was held in KD and LD v Havering London Borough Council [2010] 1 FLR 1393 that the court may determine a case summarily of its own motion, but their power "must be exercised appropriately and with a modicum of restraint."
a. There is no strict rule of issue estoppel binding on the court.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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.
26. The new evidence I have received includes a statement from Mr James Beck of the Official Solicitor's office. On 27 October 2020, Mr Beck attended on AF by a WhatsApp video call, assisted by the care home manager, and spoke by telephone with five members of the care home staff. Mr Beck had also spoken with AF in February 2020 and found it much easier to engage with him on this occasion. Mr Beck asked him whether he wanted to continue to be looked after at the care home to which he appeared to nod "yes". AF was asked whether he was "OK with [the PEG] in your tummy?" to which he "appeared to nod in the affirmative." It is fair to note that on follow up questioning AF appeared to become confused and no reliable response could be elicited. The accounts of those who see AF daily were that he continues to enjoy listening to music and the radio, and having poetry read to him. He responds to these activities with evident emotion on occasions. He exercises choice, for example about whether to have the radio or television on, and at what volume, by using hand signals such as a thumbs up or thumbs down gesture. He enjoys watching films, especially cowboy films. He appears to remain attentive throughout a film and occasionally makes brief comments about them. On return to the care home from hospital on 20 October he gave fist bumps to members of staff. When Mr Beck asked AF how he felt about being back at the care home AF responded with what "sounded like a very positive affirmation … I could hear a distinct laugh or chuckle which sounded joyful."