The Court of Protection (CoP) criticised the significant delays in best-interest decision-making.
Background:
JP, a man with a prolonged disorder of consciousness (PDOC) following a severe hypoxic brain injury received clinically assisted nutrition and hydration (CANH). Since 2016, JP has been entirely dependent on nursing care and is “at the lowest level of human awareness”. He does not require significant medical intervention.
There is strong evidence that JP would have hated to have been in the circumstances in which he found himself. The clinical team considers the continuation of CANH as futile.
Despite receiving high-quality nursing care, the judgement concluded that the Royal Hospital for Neurodisability (RHN) failed to timely address JP’s best interest which compromised his dignity. RHN had not justified the delay in seeking the CoP’s intervention to withdraw the CANH.
Decision:
The CoP reached the conclusion that it was contrary to JP’s best interests for CANH to continue. Mr. Justice Hayden reviewed the family's wishes and his strong church faith, although he had drifted away from organised religion in his later years.
The Judge reiterated that “the inherent dignity of a human being imposes an obligation on those treating him, actively to promote his dignity. I very much regret to say that the RHN has failed to meet this most fundamental of obligations.”
The Court noted that “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.”
The CoP also reiterated that Integrated Care Boards (ICBs) should not be “passive bystanders” but have a duty to be proactive. While the wishes of the family are important, “the family are not making the best interests decision.” Instead, the ICB should have looked at JP’s past and present wishes and feelings, values and beliefs which would likely have influenced his decision if he had retained capacity, as required by Sections 4(6) and (7) Mental Capacity Act 2005.
The Judge also criticised the RHN for allowing family mediation to delay necessary actions regarding JP’s care. He noted “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. Their evidence is garnered to assert P’s autonomy, not to subjugate it.”
Implications:
This decision highlights the need for healthcare providers and ICBs to implement robust systems to ensure timely best-interest decision-making. The providers and commissioners are under a duty – and not a one-off duty – to ensure that the action is in the best interests and be proactive. Those professionals should regularly and continuously review whether the steps taken are in the person’s best interest.
Reliance on a provider’s ethical framework is not adequate in complex situations such as JP’s. The views of family members are of little relevance and should not allow delay in the necessary actions regarding the care of the person. The whole purpose of the discussion with family members is to ascertain the patient's view and not the view of the family members.
An application to the Court may be necessary when there is a disagreement that cannot be resolved in any other way.