The Law, the Courts and Intensive Care Court of Protection & Medical Treatment 24 th May 2017 Rebecca Fitzpatrick Partner
Court of Protection Deals with decisions about and on behalf of adults who lack capacity (but occasionally children) Specialist court which deals with health, welfare, & financial issues Same powers, rights and privileges as the High Court London and regional courts Court of Protection Rules and practice directions Barristers and the Official Solicitor
The High Court Wardship/Children Act/Inherent Jurisdiction Deals with decisions/disputes about medical treatment relating to children (also adults who have capacity but are especially vulnerable inherent jurisdiction) Often the same judges as those seen in the high profile medical treatment cases in the Court of Protection Apply similar principles to the CoP when deciding cases around bests interests in that the welfare of the child is paramount and the views of the child s parents carry great weight
Court of Protection Role considerably extended by MCA Declarations re capacity, best interests and lawfulness of any act including medical treatment Where a dispute about a significant welfare decision including medical treatment Can appoint a deputy re personal welfare or property and affairs
When do you need to go to the Court of Protection? Particularly difficult decisions about serious medical treatment Significant disagreements that cannot be resolved Situations where ongoing decisions may need to be made about the personal welfare of P DoL that falls outside the DoLS regime Use of high degree of restraint/other factors
When is an application re medical treatment mandatory? Some medical treatment decisions are considered so serious that an application will always be necessary: Proposed withholding or withdrawal of ANH from patients in PVS/MCS Cases involving bone marrow donation by a person who lacks capacity to consent Non therapeutic sterilisation of a person lacking capacity All other cases where there is doubt or dispute as to best interests
What is serious medical treatment? Serious medical treatment involves providing, withdrawing or withholding treatment in circumstances where: a) single treatment fine balance between benefits, burdens and risks to patient; or b) choice of treatments finely balanced; or c) what is proposed is likely to involve serious consequences for the patient E.g., chemotherapy, therapeutic sterilisation, major surgery, major amputations, permanent loss of hearing or sight, withholding or stopping ANH, termination of pregnancy
Who should make the application? The decision maker Code of Practice 8.8 For cases about serious or major decisions concerning medical treatment, the NHS Trust or other organisation responsible for the patient s care will usually make the application. If social care staff are concerned about a decision that affects the welfare of a person who lacks capacity, the relevant local authority should make the application
Supreme Court Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 David James (68 yo) - admitted to hospital in May 2012 Diagnosed with pneumonia and COPD deteriorated & admitted to ITU. July 2012 suffered stroke (MCS)- no capacity Remained on unit - condition fluctuated, severe setbacks (incl. a cardiac arrest & multi-organ failure). Recurring infections. Ventilator dependent. Clinical team sought to withhold: CPR Invasive support for circulatory problems RRT Family opposed treatment at all costs
Aintree v James Supreme Court Judgment Concluded that CA had been right to allow the appeal in view of DJ s further deterioration. HOWEVER, did not uphold CA s reasoning. Lady Hale concluded: When considering whether a treatment offers a prospect of recovery, recovery does not mean a return to full health, but the resumption of a quality of life which the patient would regard as worthwhile. Assessment of the medical effects of a treatment is only one part of the equation - great weight had to be given to Mr James family life. The purpose of the best interests test is to consider matters from the patient s point of view, and it is those wishes, which must be taken into account.
Dealing with Disputes Listen to and involve patients &where appropriate their loved ones Ensure the correct legal process is followed Ensure discussions are fully documented In cases of intractable disputes consider offering a second opinion, transfer of care and seeking legal advice Where the patient lacks capacity and the dispute cannot be resolved, an application should be made to the Court of Protection Same principles apply re disputes concerning medical treatment of children (High Court rather than CoP)
M v N, Bury CCG & A Care Provider [2015] EWCOP 76 Daughter M applied for a declaration that it was in her mother s (N) best interests for ANH to be withdrawn N aged 68 profoundly physically & cognitively impaired due to progressive degenerative impact of MS The medical experts agreed N could fix and track objects within her line of vision and that while some pragmatic adjustments could be made to improve her quality of life, such measures could only be described as palliative care However N clinically stable and could live for up to 5 years Family evidence: N would not have wanted to live like this or for ANH to continue. N had not made an advance decision.
M v N, Bury CCG & A Care Provider [2015] EWCOP 76 HELD Where P s wishes and feelings could be ascertained with reasonable confidence, they had to be afforded great respect. The Act & Code placed great emphasis on the importance of personal autonomy. The central objective was to avoid a paternalistic approach; an individual s right to self-determination existed alongside the presumption of the prolongation of life. The presumption of life could be rebutted on the basis of a competent adult s cogently expressed wish. It followed that the importance of an incapacitated person s wishes and feelings, communicated via family or friends with similar cogency and authenticity, were to be afforded no less significance.
M v N, Bury CCG & A Care Provider [2015]contd HELD As P was in MCS, an evaluation of best interests had to involve a proper identification of the advantages and disadvantages of each proposed course. Where some level of awareness remained, a decision to withdraw treatment should only be made after a full analysis of P s best interests No right to die as such exists: what was in issue was N s right to live her life at the end of her days as she would have wished
M v N, Bury CCG & A Care Provider [2015]contd HELD The inviolability of life had to be weighed against an individual s right to self determination and personal autonomy: individual s choices had to be respected There was no prospect of N achieving a life that she would consider meaningful, worthwhile or dignified. Her wishes coupled with the intrusive nature of the treatment and its minimal potential to achieve any medical objective rebutted any presumption of continuing to promote life. It would be disrespectful to N to preserve her life further in a manner she would regard as grotesque. The application was therefore granted
Allow Huntington's disease sufferer to die, judge rules P in advanced stages of disease & had pulled out feeding tube more than 100 times. Relatives believed he wanted to go A consultant neurologist said it would not be right and futile for medics to force the feeding tube on the man. Hayden J concluded that the tube should not be reinserted, even though this would hasten P s death: re-inserting a feeding tube would involve restraining P. That would be disrespectful and compromise his dignity. P had enjoyed many interests, was a passionate supporter of Manchester United his aunt told how he used to regularly visit Old Trafford. A doctor told the court the man still smiled on hearing United s name, and that a recent mention of Everton had produced a frown.
Allow Huntington's disease sufferer to die, judge rules There is a strong instinct throughout the medical profession, and far more broadly, to preserve life wherever possible, But that is not a value that stands alone and in splendid isolation.it is to be considered against a whole raft of other important issues respect for the dignity and autonomy of the individual and respect for their wishes.
ICU and Deprivation of Liberty Article 5 ECHR Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law
Cheshire West Supreme Court Definition of deprivation of liberty - the acid test P Lacks capacity and Is under continuous supervision and control and Is not free to leave NB good intentions / purpose / relative normality / compliance are not relevant to existence of a DoL - A gilded cage is still a cage
Coroners and Justice Act 2009 if the deceased died while in custody or otherwise in state detention. then there must be an inquest (if only on paper), but if such a death was violent or unnatural or the cause of death is unknown then the inquest must be held with a jury have your say @BJhealthlaw
Maria Ferreira aged 45, disliked hospitals admitted to Hospital with pneumonia 19.11.13 deteriorated and moved to ICU 2/3.12.13 died 7.12.13 Maria had Down s syndrome and learning disability lacked capacity to make decisions about medical treatment have your say @BJhealthlaw
Divisional Court LJ Gross/Charles Coroner was right Little difference between state detention / DoL - Maria was neither context of Cheshire West was long term care and residence living arrangements it should not be mechanistically applied in cases of (undisputed) medical treatment no dispute over treatment needs Wholly artificial to say that she was compulsorily detained
both..the reality was that Maria remained in the ICU not because she had ben detained or deprived of her liberty but because for pressing medical reasons and treatment she was unable to be elsewhere (Gross LJ, 86 and Charles J, 159)
Court of Appeal: 26 January 2017 Lady Justice Arden (and McFarlane LJ; Cranston J) family s appeal, resisted by the Coroner intervening parties intensive care society and faculty of intensive care medicine secretaries of state for health and justice have your say @BJhealthlaw
Arden LJ The coroner s decision was correct in law She was being treated for a physical illness the root cause of any loss of liberty was her physical condition, not any restrictions imposed by the hospital have your say @BJhealthlaw
conclusion for now for hospitals? ICU and life saving treatment is generally no DoL (if materially the same for any patient) if treatment is different then consider Art 5/8 (Article 3)? no reason in principle that this should be limited to ICU only But as continuum goes from (urgent) treatment to living arrangements, then Cheshire West applies more clearly have your say @BJhealthlaw
Common conclusion pit The Aintree Supreme Court ruling in 2013 established that great weight must be given to considering P s point of view and wishes, when determining what is their best interests We are starting to see an arguable shift towards a substituted judgment test in the most clear cut of cases reflected in wider case law, including withdrawal of treatment or ANH and other decisions re life sustaining treatment ; the inviolability of life must be weighed against an individual s right to self determination and personal autonomy Disputes where P lacks capacity should be referred to the CoP
Common conclusion pit It is essential that practitioners establish P s wishes & those of their family/carers wherever possible and give those views due weight as part of the decision making process where P lacks capacity Beware of being seen as overly paternalistic/trying to do the right thing when assessing best interests without following the correct MCA process in terms of the factors to be considered
Common conclusion pit on DoLS At the current time (24.5.17) ICU and life saving treatment will generally not amount to a Deprivation of Liberty requiring formal authorisation (if materially the same for any patient) However case is being appealed to the Supreme Court, so watch this space
introducing We have created a dedicated site for the most up to date information and comment on the key cases affecting Mental Capacity and Deprivation of Liberty. have your say @BJhealthlaw
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For further information please contact: rebecca.fitzpatrick@brownejacobson.com