The Mental Capacity Act after Re Y

The Supreme Court has ended the uncertainty and inconsistency on whether an application to court is necessary in cases where a person has a prolonged disorder of consciousness and there is no dispute that  clinically assisted nutrition and hydration- CANH) should be withdrawn and the patient allowed to die.

Summary of the judgment

The judgment, with which all the justices agreed, was delivered by Lady Black.  She summarised the facts at paragraph 3:

“Mr Y was an active man in his fifties when, in June 2017, he suffered a cardiac arrest which resulted in severe cerebral hypoxia and extensive brain damage. He never regained consciousness following the cardiac arrest. He required CANH, provided by means of a percutaneous endoscopic gastrostomy, to keep him alive. The month after his cardiac arrest, Mr Y was admitted to the regional hyper-acute rehabilitation unit under the control of the first respondent NHS Trust so that his level of awareness could be assessed. In late September, his treating physician concluded that he was suffering from PDOC and that even if he were to regain consciousness, he would have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life. A second opinion was obtained in October, from a consultant and professor in Neurological Rehabilitation, who considered that Mr Y was in a vegetative state and that there was no prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors’ views about his prognosis. The clinical team and the family agreed that it would be in Mr Y’s best interests for CANH to be withdrawn, which would result in his death within two to three weeks.”

Although CANH was continued during the proceedings, Mr Y died on 22 December 2017, having contracted sepsis.   Given the importance of the issue the Supreme Court continued the appeal, although sadly but understandably Mr Y’s family felt unable to participate.  

The court therefore heard arguments from the Official Solicitor, who had been appointed as Mr Y’s litigation friend, the NHS Trust responsible for Mr Y’s care, the CCG and four intervenors who made written submissions: the Intensive Care Society; the Faculty of Intensive Care Medicine; the BMA and the  Care Not Killing Alliance.

The Official Solicitor argued that common law and the European Convention on Human Rights required court approval in every case before CANH can be withdrawn from a person in a prolonged disorder of consciousness so that the patient’s vulnerable position can be safeguarded.  

Lady Black highlighted two central pre-MCA 2005 cases: Re F, In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 concerning the sterilisation of a woman lacking capacity to consent to the procedure, and Airedale NHS Trust v Bland Airedale NHS Trust v Bland [1993] AC 789. 

In In re F (Mental Patient: Sterilisation), the House of Lords identified the features in a proposed intervention where an application to the court was “highly desirable as a matter of good practice”:

“first, the operation will in most cases be irreversible; secondly, by reason of the general irreversibility of the operation, the almost certain result of it will be to deprive the woman concerned of what is widely, and as I think rightly, regarded as one of the fundamental rights of a woman, namely, the right to bear children; thirdly, the deprivation of that right gives rise to moral and emotional considerations to which many people attach great importance; fourthly, if the question whether the operation is in the best interests of the woman is left to be decided without the involvement of the court, there may be a greater risk of it being decided wrongly, or at least of it being thought to have been decided wrongly; fifthly, if there is no involvement of the court, there is a risk of the operation being carried out for improper reasons or with improper motives; and, sixthly, involvement of the court in the decision to operate, if that is the decision reached, should serve to protect the doctor or doctors who perform the operation, and any others who may be concerned in it, from subsequent adverse criticisms or claims.” 

In Bland, the House of Lords held that in cases involving a patient in persistent vegetative state, the guidance of the court should be sought before discontinuing treatment: however Lady Black emphasised the context where the court was responding to relatively recent medical developments, and where “every step forward requires the greatest caution”.  She noted that the court had more than once in the judgment expressed unease at the prospect of an application to court being required in all cases, but that at present doctors would be “well advised in each case” to apply to the court for a declaration if they seek to withdraw life support where there has been no valid consent by or on behalf of the patient.  

In R (Burke) v General Medical Council (Official Solicitor and others intervening) [2006] QB 273, Mr Burke failed in his argument that there was a legal requirement to seek the court’s authority before discontinuing treatment.  The European Court held that “A doctor, fully subject to the sanctions of criminal and civil law, is only therefore recommended to obtain legal advice, in addition to proper supporting medical opinion, where a step is controversial in some way. Any more stringent legal duty would be prescriptively burdensome - doctors, and emergency ward staff in particular, would be constantly in court - and would not necessarily entail any greater protection.” 

Lady Black summarised the key provisions of the Mental Capacity Act which are germane to this issue: the guiding principles in section 1, the “general defence” in section 5, the introduction of lasting powers of attorney for health and welfare and advance decisions, and the requirements for independent mental capacity advocates in cases where a NHS body proposes to carry out serious medical treatment.  

She noted that 6.18 in the Code of Practice singles out certain treatments as requiring the Court to make the decision (“the Court of Protection must be asked”..):

•the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS)

 • cases where it is proposed that a person who lacks capacity to consent should donate an organ or bone marrow to another person 

•the proposed non-therapeutic sterilisation of a person who lacks capacity to consent (for example, for contraceptive purposes) 

•cases where there is a dispute about whether a particular treatment will be in a person’s best interests (as the Code explains in 6.19, this will include cases raising ethical dilemmas or involving innovative treatment, as well as where there are disagreements). 

This is not fully consistent with Paragraphs 8.18-8.24, however,  which suggest that such cases “should” be brought to court.  As Lady Black notes, Practice Direction 9E, which had stated unequivocally that the withdrawal of CANH should be brought to court, was withdrawn in 2017 and not replaced.  Lady Black noted the (obiter, but powerful and informed by “long experience in the Family Division where life and death issues are regularly litigated”) views of the Court of Appeal in In Re Briggs (Incapacitated Person) [2018] Fam 63 that as regards the conflict between the Code and Practice Direction 9E, the Code should be preferred, and quoted King LJ’s conclusion that

 “(i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 of the MCA.

 (ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15 to 17 of the MCA.” 

This was followed closely by Peter Jackson J’s judgment in In Re M (Incapacitated Person: Withdrawal of Treatment) [EWCOP] 18, [2018] 1 WLR 465) when he held (on the basis of written submissions) that on the facts of that case the decision about M’s best interests was one that could have been taken “by her treating doctors, having fully consulted her family and having acted in accordance with the MCA and with recognised medical standards. These standards will doubtless evolve, including through the current initiative taken by the ad hoc Committee, but in my view the approach taken by the clinicians and the family in this case fully respected the Art.2 rights of M in a fashion contemplated by the ECHR in Lambert. However, every case is intensely fact-specific, and those considering withdrawal of CANH should not hesitate to approach the Court of Protection in any case in which it seems to them to be right to do so.”

Lady Black turned to Lambert v France, [2016] 62 EHRR 2, where the European Court noted that in earlier cases concerning life-sustaining treatment, the court had taken account of

•the existence in domestic law and practice of a regulatory framework compatible with the requirements of articles 2, 6 and 8 ;

•whether account had been taken of the applicant’s previously expressed wishes and those of the persons close to him, as well as the opinions of other medical personnel 69 ; and

•the possibility to approach the courts in the event of doubts as to the best decision to take in the patient’s interests. 

The court had concluded that the 

“organisation of the decision-making process, including the designation of the person who takes the final decision to withdraw treatment and the detailed arrangements for the taking of the decision, fall within the state’s margin of appreciation.”

Lastly in surveying the relevant legal framework Lady Black summarised the evolving guidance from professional bodies, with particular reference to that of the General Medical Council.  The December 2017 interim guidance, following Briggs and the withdrawal of Practice Direction 9E, proceeds on the basis that there will be cases where no application is required but that “where there is disagreement about best interests or the decision is finely balanced, an application should be made to court for a declaration as to whether CANH continues to be in the patient’s best interests”.  

The guidance goes on to explain the steps to be taken to ensure proper determination of the patient’s best interests, including a second opinion from a consultant with experience in PDOC, who has not been involved in the patiet’s care and if possible is external to the NHS Trust and CCG concerned.

The Official Solicitor’s argument was that, even if there is no common law requirement for judicial scrutiny of the decision to withdraw CANH in every case, the absence of any alternative fully developed mechanism fully to protect there person’s rights and dignity means that, for now, there is no satisfactory alternative to an application to the court, and that this is required by Articles 2, 6, 8 and 14 of the Convention.  This is particularly the case for patients in prolonged disorders of consciousness, who may be clinically stable and live for significant periods with only nursing care and CANH.

Lady Black rejected this argument.  She held that neither Bland nor Re F laid down a common law requirement that an application must be made to the court in all cases, but was setting out guidance as to when an application was desirable.  This was underlined in Burke.  The Mental Capacity Act is silent on the issue.  Nor does the Code, which is internally contradictory, create an obligation as a matter of law to apply to the court in every case.

Nor, she held does the Convention require such a rule.  Applying the factors that the Court identified in Lambert Lady Black held that:

(i)The combined effect of the MCA, the Code and the professional guidance (particularly that of the GMC) creates a “regulatory framework”)

(ii)The MCA clearly requires account to be taken of the views of the patient and those close to him/her, and

(iii)There is the opportunity to approach the Court where there is doubt; whether or not there is a dispute, and is of particular benefit where the decision is finely balanced.  

Importantly Lady Black commented at § 109 that 

“No one would discourage an application in any case where it is felt that the assistance of the court would be valuable. And if a dispute has arisen and cannot be resolved, it must inevitably be put before the court.” 

This is obiter, but is put in strong terms (and is consistent with the guidance in the Code, as well as the -obiter- comments of King LJ in Briggs). Lady Black  found that there is no authority to support the argument that Article 6 requires an application to be made in all cases and secondly that Article 6 is engaged by the existence of an argument or dispute.  She did not accept that Article 14 was engaged.

Furthermore Lady Black cast doubt on the special status of patients in PDOC where CANH is to be withdrawn, agreeing with the BMA that the dilemmas facing a medical team and family members in such cases also arise in patients with degenerative neurological conditions or critical illnesses.

Comment: 

This judgment provides welcome clarity for families and clinicians who have reached agreement in tragic circumstances such as Y’s, and feel compelled to make an application to the court rather than implementing their decision.  (Anecdotal evidence suggest that, in reality, such cases do not always lead to an application and agreed decisions are simply put into effect, as they are in the many other cases where families and clinicians have to take difficult decisions about those in, for example, degenerative neurological conditions). 

Where does the case leave the general defence in section 5 of the Mental Capacity Act?  Lady Black would not be drawn into interpreting Lady Hale’s comments in N v ACCG [2017] UKSC 22] that:

“... Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court...” 

Following this judgment, what are the decisions that “the court” has said must be taken to court?  Clearly these will continue to include cases where the court provides the only “procedure prescribed by law” when a person’s living arrangements deprive them of their liberty, and where the Court of Protection has devised a bespoke process (Re X, [2014] EWCOP 25, Re X, [2014] EWCOP 37).

It is suggested that the guidance in the Code at 6.18 should continue to be followed.  This is part of the regulatory framework which Lady Black considered essential for compliance with Article 2.  In paragraph 109 above she strongly endorsed the need to apply to the court in cases of dilemma or doubt.  These comment are obiter but expressed in strong terms.

Where does this leave decisions about welfare?  The need to apply to the court in cases of doubt or dispute was emphasised by Peter Jackson J as he then was in London Borough of Hillingdon v Neary [2011] EWHC 1377 COP,  Peter Jackson J (as he then was) stated that 

“The ordinary powers of a local authority are limited to investigating, providing support services, and where appropriate referring the matter to the court. If a local authority seeks to regulate, control, compel, restrain, confine or coerce it must, except in an emergency, point to specific statutory authority for what it is doing or else obtain the appropriate sanction of the court……Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary.”  

He further commented at §142 that:

“Where a dilemma exists, the court provides an accessible forum. Often, parties will have a clear view of what they are proposing, but if a party needs more evidence or is uncertain about the best outcome in a difficult case, it is no shame to say so. Proceedings in the Court of Protection need not be adversarial.”

As is well-known the Law Commission recommended an amendment to the statutory defence provided by the  Mental Capacity Act.  The statutory defence would not be available to someone acting in a professional capacity or for remuneration who carries out an act pursuant to a relevant decision, unless he or she has prepared a written record concerning specified information (or a written record has been prepared by someone else).  The purpose of the amendment was to provide greater protection to those lacking capacity in the case of decisions which represent significant interferences with P’s Article 8 right.   “Relevant decisions” include

(i) a decision by a public authority to meet P’s needs by a move to long term accommodation

(ii) a decision to restrict or prevent P’s contact with named individuals or a specified class of individuals

(iii) the provision of serious medical treatment, •the administration of “covert” medication and

(iv) the administration of treatment against a person’s wishes.

Although the recommendation was accepted by the Government, the current version of the Mental Capacity (Amendment) Bill does not contain the amendment.  This was a thoughtful and genuine attempt by the Law Commission to give section 5 “teeth” in relation to decisions that engage P’s rights under Article 8: however it is suggested that despite these good intentions it could, if not implemented very carefully, have done the opposite.  If there was a need for a best interests decision to prevent P’s contact with a named individual, for example, there must, by definition, be a welfare dispute with the named individual.  At present, following Neary, a decision-maker seeking to put this into effect would be unwise not to make an application to the Court.  Under the Law Commission’s proposals, this is replaced by a process that could simply become part of a paper trail.

There is much to reflect on in this judgment as we move towards an amended MCA and a new Code.