Best Interest Decision-Making: An Active Pursuit

Yesterday, Mr Justice Hayden handed down the second judgment in NHS South East London Integrated Care Board v JP & Ors. It is an important decision for both providers and commissioners who are providing treatment, care and support to people in their best interests.[1]

The case concerned JP, a man in a Prolonged Disorder of Consciousness (“PDOC”) receiving clinically assisted nutrition and hydration (“CANH”). The substantive issue before the Court of Protection was whether it is in his best interests to continue to receive CANH. Earlier in January, Mr Justice Hayden had determined that it was not in NHS South East London Integrated Care Board v JP & Ors.

In this second judgment, the Court focussed in particular on three issues, namely the:

1. requirement to actively consider whether an action is, and continues to be, in a person’s best interests;

2. scope and remit of consultation in best interest decision-making; and

3. imperative to apply to Court without delay.

We acted for the Royal Hospital for Neuro-disability (the “RHN”) in this case, as well as cases in 2024 before the Vice President of the Court of Protection Mrs Justice Theis DBE.[2] The RHN charity has unreservedly apologised for the length of time that has passed before best interest decision-making about CANH has been undertaken, and proceedings issued in Court for the persons at the centre of those cases. The ICB commissioners in those cases have similarly apologised.

The RHN is, it understands, one of the largest providers of care to those in PDOC in the country. Recognising the criticism it received in a previous case in winter 2021[3], in recent years, it has worked incredibly hard to develop a robust system of best interest consultation and decision-making for those it is caring for who are receiving CANH. The Court has noted that the system that the RHN has devised is “thought-through, robust and sensitive.” Its structures and processes have the persons it cares for firmly at the centre and apply the guidance in the Royal College of Physicians’ national clinical guidelines on “prolonged disorders of consciousness following sudden onset brain injury.” We understand those guidelines are due to be reviewed and revised.

The ongoing duty on providers and commissioners

This judgment rightly extols that the “inherent dignity of a human being imposes an obligation on those treating him, actively to promote his dignity.” By this, the Court emphasises the active nature of best interest decision-making that was set out in Aintree University Hospital NHS Foundation Trust v James (2013) UKSC 67 – the duty is to determine that the continuation of the action is in best interests.

Professionals delivering health and care must assure themselves, regularly and continuously, that the steps that they are taking for a person who lacks capacity continues to be in their best interests. The duty is not one-off – at the outset of making a decision to start a treatment or care intervention – it is an active duty that remains ongoing throughout the continuation of the treatment or care.

The onus is also on providers of health and care to ensure that they have systems and processes to ensure that proactive consideration of ongoing best interests. As Mr Justice Hayden states in the judgment:

“It is, to my mind, axiomatic that a process which does not erect a strong scaffolding for best interests decision-taking, within timescales dictated by the patient’s circumstances, runs the serious and avoidable risk of compromising their dignity.”

Finally, there is a “critical role” for commissioners here too. Mr Justice Hayden reminds ICBs to be “vigilant and proactive” in ensuring that the care and treatment they are commissioning continues to be in the person’s best interests. Adopting the language of Mrs Justice Theis DBE, he warns commissioners that they must not be “passive bystanders” in best interest decision-making. There is a positive duty on commissioners to be the check and balance and the guardians ensuring that there is proactive consideration of whether care and treatment remains in a person’s best interests.

What is the nature and extent of the duty to consult?

Mr Justice Hayden is clear in his view about this:

“The views of family members, their own wishes, feelings, religious and cultural beliefs, are, in themselves, of little, if any, relevance. I emphasise that their views are being sought solely to illuminate the likely wishes and feelings of P. “

and

“the objective of the discussions with family members is not to ascertain their views and beliefs but to ascertain if what they have to say can illuminate P’s wishes and beliefs.”

This approach appears difficult to reconcile with the plain text of the Mental Capacity Act 2005 itself – which sets out at section 4(7) the duty on the best interest decision-maker to take into account (if it is practicable and appropriate to consult them) the views of those with an interest in the person’s welfare:

“as to what would be in the person’s best interest and, in particular, as to the matters mentioned in subsection (6).” (our emphasis)

The matters in section 4(6) are the person’s past and present wishes and feelings, the person’s beliefs and values that would be likely to influence his or her decision and the other factors that the person would be likely to consider if he or she were able to do so.

The use of the conjunctive “and” in section 4(7), in our view, is critical here. To us, it appears that the statute directs on its face two-fold consultation:

1.     information-gathering about the person’s wishes and feelings; and

2.     what the person being consulted considered is in the person’s best interests.

The words of the statute stating that consultation should include “in particular” the matters in section 4(6), in our view, sets out on the face of the legislation that consultation is not only on those matters. The Act again, in our view, is clear what else should be consulted upon; the consultee’s views on the person’s best interests.

When to make an application to Court?

In this judgment, Mr Justice Hayden has repeated the call we have seen in a number of Court of Protection judgments for providers and commissioners to issue proceedings early. The phrase “delay is inimical to P’s best interests” is well versed.

In our experience, it is not uncommon for there to be a disagreement as to what is in a person’s best interests. Those practicing in the fields of health and care are well-experienced in working collaboratively with those with an interest in the person’s welfare to seek to reach agreement and consensus. We think this is consistent with the expectation of the Code of Practice to the Mental Capacity Act that an application to the Court may be necessary for “disagreements that cannot be resolved in any other way.”

However, Mr Justice Hayden has clarified the extent of the expectation on health and care providers, indicating that “[t]here is no onus on the ICB or healthcare providers to broker an agreement between family members.” Particularly in circumstances where the decision is a binary one and therefore less likely to be capable of mediation, the message is clear: issue swiftly when a lack of agreement crystallises.

The judgment does helpfully give some guidance to decision-makers about the extent of consultation that is expected from them. It suggests that the onus on the decision-maker is to consult with those that it is necessary to do so in order to understand whether the person had any relevant wishes or feelings to the decision, if yes, what those are – and whether there is any disagreement. When any of those issues manifest, the indication is that decision-makers have sufficient information to make the decision about whether an application to Court is required. 

Conclusion

This judgment does not detract from the high standard of care delivered by highly motivated professionals doing their best in what is recognised as often being immensely challenging circumstances.

The matter of JP concerned a man in a PDOC receiving CANH. It is understood that there are thousands of people in nursing homes and other settings in a PDOC. This judgment is a clear notice that their best interests must be proactively considered; providers and commissioners must be assured that the care and treatment that they are delivering and commissioning continues to be in their best interests.

The principles and duties in the judgment, however, are not limited to best interest decisions about CANH for those in PDOC. They apply equally to any care or treatment being delivered in best interests to a person who lacks capacity to make decisions about it themselves.

A checklist for providers and commissioners:

1.     Who am I providing or delivering care to or for?

2.     Do they lack capacity to make decisions about the care and treatment I am providing or commissioning?

3.     Is there care and treatment being provided and commissioned in the person’s best interests?

4.     When was the last time proactive consideration was given as to whether that care and treatment is in the person’s best interests?

5.     Do our staff understand this imperative duty to continuously review best interests?

6.     Do we have systems, procedures, policies and structures to ensure that the duty to satisfy ourselves that it continues to be in the person’s best interests to receive this care and treatment is being met?

7.     Do our commissioning policies and processes ensure that, as commissioners, we are proactively engaging with providers to assure ourselves that active consideration is being given as to whether the care and treatment we are commissioning continues to be in the person’s best interests?