ISSUE 54 EWJ web - Journal - Page 21
We also fully appreciate that there may well be situations in which it is prudent for a treating body to bring
an application to court to get confirmation that it is
acting lawfully so as (for instance) to forestall arguments after the event before an inquest. We say ‘court’
here, because we remain very doubtful that the Court
of Protection is the correct forum for seeking a declaration of lawfulness in respect of a determination that
a course of treatment is not clinically appropriate –
rather, we suggest that the correct forum is the King’s
Bench Division under Part 8 of the CPR, not least so
as to avoid the slide into best interests language / analysis that (on one view) took place in Re EUP. We also
have squarely in mind the Court of Appeal decision
in AVS v A NHS Foundation Trust & Anor [2011] EWCA
Civ 7, which made clear that disputes about best interests where the treatment option is not on the table
should not be entertained by the Court of Protection
– in strong terms:
in Art 2, as part of the general obligation on the State to
protect the right to life at law.
Even where the position of the doctors is that the treatment is
unconscionable and they will not provide it (and following
Burke and N v A CCG cannot be required to do so by any
CoP judge) a responsible public body should surely actively
seek out a judicial endorsement of the ceiling of care they are
imposing. Indeed that was precisely the application initially
made in the seminal case of Aintree v James [2013] UKSC
67 where at first instance when the Trust sought declarations
regarding some proposed ceilings on Mr James’s care the judge
declined to make them. There was no suggestion on the facts
of that case that the application of the Trust was improperly
brought. As Mr Justice Peter Jackson (as he then was) said
in that case: “It must always be recognised that a declaration
is not a treatment order, but the endorsement of a plan created
by others.”
The blog then goes on to cite the Practice Guidance as
supporting the need for an application.
38. […] A declaration of the kind sought [i.e. that treatment
was in the person’s best interests] will not force the respondent
hospital to provide treatment against their clinicians’ clinical
judgment. To use a declaration of the court to twist the arm of
some other clinician, as yet unidentified, to carry out these procedures or to put pressure upon the Secretary of State to provide a hospital where these procedures may be undertaken is an
abuse of the process of the court and should not be tolerated.
With respect, we think that it is going too far to suggest
that Article 2 ECHR requires an application to court
in every situation where a medical body is contemplating withholding or withdrawing treatment or has decided to do so. If this was the case, then every decision
by a clinical body to withhold a life-saving cancer drug
on the basis that the person does not fit the strict cost /
benefit criteria would need to be taken by that body to
court if the person (or someone on their behalf) does
not agree. Or, to focus squarely in on clinical appropriateness, what about a decision not to provide clinically
assisted nutrition and hydration in late stage dementia,
in circumstances where NICE guidance NG97 specifically states “[d]o not routinely use enteral feeding in
people living with severe dementia, unless indicated for
a potentially reversible comorbidity?” [1] We suggest
that a difference of opinion with family / others close to
the person about the provision of CANH in such a situation cannot itself give rise to an obligation on the part
of the treating body to take the case to court. And finally, to outline a situation which in practice combines
both resource allocation and consideration of clinical
appropriateness, admission to intensive care. Again, we
suggest that it is (at best) doubtful that a Trust is under
an obligation to bring to court cases where there is a
disagreement about whether a person is admitted but
the clinicians conscientiously consider admission could
serve no clinical purpose.
39. Like the President, I have also reached the conclusion that
the continuation of this litigation by permitting a lengthy hearing to be urgently arranged for numerous busy medical practitioners to be cross-examined truly would be “doomed to
failure”. If there are clinicians out there prepared to treat the
patient then the patient will be discharged into their care and
there would be no need for court intervention. If there is noone available to undertake the necessary operation the question
of whether or not it would be in the patient’s best interests for
that to happen is wholly academic and the process should be
called to a halt here and now.
We have very considerable sympathy with the
proposition that it should be the treating medical body
which has responsibility for bringing applications
where there is in fact a best interests decision to be
made, and the situation falls within that covered by
the Practice Guidance, not least because it undoubtedly likely to be more efficient (as Hayden J identified)
in most cases. And we would also be the first to say
that it is very unfortunate that the (welcome) expansion of non-means-tested legal aid to parents in serious
medical treatment cases involving children was not expanded to those potentially involved in such cases in
respect of incapacitated adults.
With due diffidence, given that Hayden J was making
observations about Practice Guidance he himself issued, we note that the Practice Guidance does not, in
fact, address the situation that was in play in EUP‘s
case, at least on the facts as they appear in the judgment. The Practice Guidance [2] was specifically concerned with situations where there is a dispute about
the best interests of the person. This is clear from paragraph 6, which explains how, normally, s.5 MCA 2005
will provide the basis upon which treatment is
provided / stopped / withheld. Section 5 expressly applies where the person carrying out the act reasonably
believes that they are acting in the best interests of the
individual lacking the relevant decision-making
capacity. Paragraph 7 of the Practice Guidance then
goes on to identify that paragraphs 8-13 “set out the
However, we suggest that it is important to recognise
the limits of the points set out above.
In a blog (https://ukmedicaldecisionlawblog.co.uk/ dont-ignore-thevice-presidents-practice-guidance-when-a-decision-relates-to-the-provision-of-life-sustaining-treatment/_) on the Serjeant’s Inn
Medical Law blog about the EUP case, it is suggested
that:
In such cases the Art 2 ECHR rights of the individual to
whom life sustaining treatment is not being given arguably
demand that the Trust, as a ‘public authority’ within the meaning of s.6 HRA 1998, give effect to the protections inherent
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