Case Summary: RW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067

Case

RW v Chelsea and Westminster Hospital NHS Foundation Trust [2018] EWCA Civ 1067

Relevant Topics

• Best Interests
• Mental Capacity Act
• Appealing a Court of Protection Decision
• Transparency Orders
• Anonymity in the Court of Protection
• Clinically Assisted nutrition and Hydration ("CANH")

Practical Impact

The scope of appealing a Court of Protection decision regarding best interests or anonymity under a Transparency Order is limited to cases where the law has not been applied correctly or where the decision is wrong. However, the Court of Appeal "will be very slow" to conclude that a judge was wrong in sensitive and difficult cases.

Commissioning bodies should ensure that the proposals being considered by the Court are feasible and available. There is no purpose in a Court deciding whether a particular option is in the best interests of the patient if it is not in fact known to be available.

Courts will strongly resist any suggestion that the sanctity of life carries greater weight if P is above a "minimally conscious state". The framework for the assessment of best interests is a universal framework, regardless of diagnosis.

Summary

In April 2018, the Court of Protection held that; (i) it was in RW's best interests to be discharged home for palliative care and oral comfort feeding, having had his NG tube removed, and (ii) RW's identity and the identity of the lead clinician should be protected under a Transparency Order.

RW's family applied to the Court of Appeal for permission to appeal these decisions but this permission was refused on the basis that the Court of Protection judge had (i) correctly directed herself as to the law regarding best interests and therefore had been entitled to reach the best interest decision she did, based on the oral evidence provided to her and (ii) not erred in principle or reached a conclusion regarding the Transparency Order that was plainly wrong and therefore there were no arguable grounds for interfering with this decision.

RW has end stage dementia and lacks capacity to make decisions regarding his medical treatment.

RW was admitted to hospital in September 2017 and a nasogastric ("NG") tube was inserted for the provision of CANH. RW was ready for discharge in November 2017, however remained in a hospital setting due to a disagreement regarding his medical treatment.

In April 2018, this culminated in a one-day contested final hearing before Parker J in the Court of Protection to determine whether it was in the best interests of RW to be discharged home with an NG tube (the position supported by RW's family) or to be discharged home for palliative care and oral comfort feeding, having had the NG tube removed before his discharge (the position supported by the Trust and the Official Solicitor representing RW).

In addition, an application was also made by the family to name RW (on the basis that he had led a public life and would have welcomed the publicity) and the lead clinician as the decision-maker. This application was opposed by the Trust and the Official Solicitor.

Best Interests

Parker J considered the evidence before her and concluded that the disbenefits of the NG tube in the home environment outweighed the benefits for RW and that RW continuing to receive CANH via NG in the home environment was not clinically appropriate and unsafe. She accepted that "palliation would make RW as comfortable as possible and ensure his dignity and comfort," and therefore made a declaration that it was in RW's best interests to be discharged home for palliative care and oral comfort feeding, having had the NG tube removed before his discharge

The family applied for permission to appeal this decision on two key points. First, Parker J had failed to appreciate and therefore give any weight to RW's wishes and feelings; second, Parker J had overstated the risk that having the NG tube in place would pose for RW at home and the burden this would place on him, in circumstances where the dedicated care his sons could provide that would remove or mitigate that risk.

Transparency Order

Parker J rejected the family's submissions regarding anonymity taking the view that she could and should protect the lead clinician from being named as the clinician who gave advice and evidence on the withdrawal of life-sustaining treatment in respect of RW. She also stated that "Doctors need to be able to get on with their jobs in the interests of other patients." With regards to RW's identity, she concluded that whatever RW's earlier attitude to public life, "we are in entirely different territory," and RW was a vulnerable adult who should be protected at the end of his life.

RW's family appealed this decision stating that Parker J had failed to consider (i) RW's likely views when determining whether his identity should be made public; and (ii) access to justice as the family wished to publicise the case for the purpose of "crowd-funding" the appeal.

The Court of Appeal was not persuaded that Parker J had made an error in arriving at her conclusions. The Court of Appeal refused permission to appeal and lifted the stay on the judge's order.

Best Interests

Lady Justice Sharp held that neither of the grounds for challenging the best interest decision were "well-founded" as Parker J had "carefully assessed the evidence and arguments within the correct legal framework" and had had the benefit of hearing oral evidence from the family and clinicians.

With regard to RW's wishes and feelings, Lady Justice Sharp held that Parker J had addressed this and had reached the conclusion that the evidence did not establish what RW's beliefs regarding the withdrawal of treatment would likely have been and that without evidence of sufficient quality as to RW's wished and feelings it would be wrong to speculate.

With regards to the effect of the care the family could provide at home, Lady Justice Sharp held that Parker J did consider this, however "it was open to her to conclude that the evidence as to how their presence affected such matters… was limited; and further, that their proposed regime is untried and untested and many things could go wrong."

Transparency Order 

Lady Justice Sharp held that the Parker J did consider RW's likely views and that there were no arguable grounds for interfering in this case. Lady Justice Sharp stated "the task undertaken by the Judge in balancing the different considerations is an evaluative one, akin to the exercise of discretion. The court will not interfere unless the judge erred in principle or reached a conclusion that is plainly wrong; that is, one outside the ambit of conclusions which a judge would reasonably reach… I would be very slow to interfere with an assessment of how the balance is struck in such cases, particularly where, as here, the judge has seen and heard from those most closely involved, and will inevitably have a much better feel for the dynamics of such a sensitive and difficult situation."

Lady Justice Sharp went on to agree with Parker J that there is "a real risk that publication of RW's identity could lead to public intrusion into his life which would interfere with the ability of his sons and professional carers to care for him in these final stages of his life."

With regards to access to justice, Lady Justice Sharp acknowledged that this was now an academic point as the family's legal team had agreed to act pro bono. She therefore did not comment further on this.

Realistic Options 

Both Lady Justice Sharp and Lord Justice Peter Jackson noted that there may have been practical problems with the NG tube home-care option that were not properly explored at the Court of Protection hearing. Lord Justice Peter Jackson held "a court considering a decision of this seriousness must have the realistic treatment options clearly in mind. There is no purpose in deciding whether a particular option is in the best interests of the patient if it is not in fact known to be available."

Best Interests Framework

It's worth noting two further important comments of Lord Justice Peter Jackson.

First, Lord Justice Peter Jackson comments that where a person cannot speak for himself, his family members and carers are often an invaluable source of information about his values and his best interests. However "it is important that the strength and conviction of their views is not allowed to detract from a steady appreciation of the welfare of the individual concerned."

Second, Lord Justice Peter Jackson referred to an original ground of the appeal that had subsequently been dropped, contending "that above a 'minimally conscious state' the sanctity of life should absolutely prevail regardless of other balance sheet considerations, unless there is very clear and cogent evidence that P himself would have wished to have CANH withdrawn…" Lord Justice Peter Jackson was critical of this approach, emphasising "that the framework for the assessment of best interests is a universal framework, regardless of diagnosis, and attempts to load the scales in this manner should be firmly resisted."