The end of the compulsory requirement to apply to…

The Court of Appeal has handed down a hugely significant judgment for the NHS concerning the handling of Persistent Vegetative State (“PVS”) and Minimally Conscious State (“MCS”) cases.

In Director of Legal Aid Casework & Ors v Briggs [2017] EWCA Civ 1169, handed down on 31 July 2017, the Court of Appeal has decided that doctors and relatives can agree between themselves whether it is in the best interests of a patient to withhold or withdraw medical treatment, including Clinically Assisted Nutrition and Hydration (“CANH”), from a patient in PVS or MCS without the need to apply to the Court of Protection.

The Court said that apparent “requirement” to apply to the Court in PVS and MCS cases under Practice Direction 9E did not set up any legal obligation to do so but was merely guidance which, in practice, should not now be followed. The practical effect of this ground breaking judgment is that decisions to withhold or withdraw CANH can lawfully be made on the wards between relatives and doctors. An application to the Court will still be necessary where there is disagreement between clinicians and relatives or within the clinical team, but not where there is unanimity about whether it is in the best interests of an incapacitated patient to withhold or withdraw CANH and thus manage the dying process for in a compassionate way, that decision does not need to go to court.

The Court of Appeal also confirmed that, where such a decision was made, doctors will have immunity from litigation pursuant to section 5 Mental Capacity Act 2005 and confirmed the effect of the decision in Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31 that a patient who was so ill that his or her illness meant that a patient had to stay in hospital for treatment was not deprived of their liberty, and hence no application needed to be made under the Deprivation of Liberty Safeguards (“DOLS”).

Comment

The rule that all cases of withholding or withdrawing CANH from PVS and MCS patients in Practice Direction 9E should be brought before the Court was first raised by the House of Lords in Bland v Airdale NHS Trust as long ago as 1993. Parliament could have imposed a specific requirement for all PVS and MCS cases to be the subject of court decisions when passing the Mental Capacity Act 2005 but did not do so. Thus, Parliament appeared to have decided that doctors and relatives should be able to take these decisions between themselves. PVS cases to court (but not MCS) is recommended in the accompanying statutory Code of Practice although this part of the Code of Practice was not referred to by the Court in this case. Thus, for PVS cases, a tension exists between the Court of Appeal judgment and the Code of Practice. Doctors are obliged to take the Code of Practice into account when making decisions but are also obliged to take account of the views of the Court of Appeal, and thus this recent clear explanation as to when PVS cases should and should not be taken to court can be relied upon in a clear case.

Permitting a “best interests” decision making process to take place on the ward rather than in a court, provided the decision is undertaken responsibly, is likely to be beneficial for patients, relatives and the NHS because enables decisions to be taken promptly in a consensual and humane manner, and can avoid the delays and costs of a protracted legal case.

The main objection to giving decision making in this area to doctors and relatives is that this process does not have anyone who speaks up for the incapacitated patient and that there is a wider public interest in ensuring that the patient has an independent voice in the process before any decision is made which will lead to a patient's death. Thus, it could be argued, permitting a life or death “best interests” decision making process to take place on the ward delivers insufficient transparency and scrutiny and thus will not properly protect the interests of the incapacitous patient.

However, whilst that cautious approach is understandable, there are 3 substantial reasons why the answer to the "should doctors and relatives or the court be the PVS/MCS decision maker" comes down in favour of the doctors and relatives. First, the reality is that these decisions are made on a daily basis by doctors and relatives up and down the country every day. It could be argued that every "DNAR" decision (which to protect the article 8 rights of the patient has to be discussed between doctors and relatives following R (on the application of Tracey) v Cambridge University Hospitals NHS Foundation Trust & Anor [2014] EWCA Civ 33) is of near equal importance but it is not suggested that every DNAR decision for a patient lacking capacity should be made by a Judge. It follows that, as doctors are already trusted to make life and death decisions on behalf of patients, it is inconsistent to prevent them being trusted to do so in PVS or MCS cases, and there is no continuing justification for that inconsistency.

Secondly, the legal process that has to be followed before a Judge can make this decision inevitably results in very long delays whilst the patient is kept in an undignified twilight zone between life and death, is inevitably distressing to relatives and consumes vast NHS resources as treatment is continued and legal costs are incurred. There are thus considerable disadvantages in providing that a PVS/MCS withholding or withdrawing decision can only be made by a Judge.

Thirdly, our whole system of medicine is based on an assumption that doctors, particularly operating within an NHS Trust, can be relied on to act responsibly. Serious decisions such as a PVS/MCS withholding or withdrawing decision will inevitably be made by a multi-disciplinary team and not by a single doctor and thus provides a measure of protection for the patient lacking capacity. The steps that need to be taken before a lawful "best interests" decision can be taken in a PVS case (including SMART testing) are well recognised by the court and, if decision making is transferred to the doctors and relatives, would have to be followed by any responsible team of doctors who were taking such a decision in place of a Judge. If, as a result of that decision making process, there was any doubt about the best interests decision or any disagreement, proper clinical governance would require it to be referred to a Judge in any event. That clinical governance process, it could be argued, is sufficient to protect the interests of the patient who lacks capacity.

It follows that the effect of Briggs is probably to remove the legal imperative to refer every PVS or MCS case to the Court of Protection. It does not prevent such a decision being referred to the court where there is any doubt about withholding or withdrawing CANH is in the best interests of a patient. Further every such decision will still have to be referred for a court decision where there is any dissent from those who have in interests in the patient's welfare (which is, of course, not limited to relatives). Seen with these limitations, this is an informed, sensible and compassionate decision from the Court of Appeal which finally places decision making in these most complex cases where Parliament intended to rest, namely with doctors and relatives.

However it remains unclear where this decision leaves Practice Direction 9E or those parts of the MCA Code of Practice which recommend court applications in PVS cases. It probably gives NHS Trusts, doctors and relatives permission to take withholding and withdrawing decisions involving PVS and MCS patients in clear cases without referring cases to the Court of Protection. It remains to be seen whether doctors and NHS Trusts will have the courage to do so.

The affirmation of the decision in Ferreira should also be welcomed. Article 5 is primarily about the justification that the state needs for imprisoning citizens or depriving them of their liberty in analogous situations. A patient on intensive care in an NHS hospital is not imprisoned by the state.