Powers of Attorney Bill receives Royal Assent

Read

Factual Background:

This case concerns VA, a 78-year-old woman, who had suffered a significant hypoxic brain injury following multiple cardiac arrests [1-3]. Over the months that followed, VA showed no signs of recovery of cerebral function, a fact which was accepted by her family. There was however a disagreement as to the level of VA’s awareness; the Trust considered that VA was “at the lowest end of the spectrum of a profound disorder of consciousness” [7], whereas the family did not believe that VA’s awareness was as profoundly compromised as medical evidence suggested.

The Trust brought proceedings following a dispute with VA’s family about what was in her best interests. The application sought determination as to whether it was in VA’s best interests to undergo extubation and palliative care or to have a tracheostomy and PEG inserted [10]. The Trust considered, at the time of the application, that both were equally valid options. They subsequently revised their view, on the basis that treatment of any kind would be futile and burdensome for VA.

Hayden J heard evidence from VA’s family. VA’s eldest daughter, MA, was of the view that “extubation and palliative care would be perceived, in her culture, as a family giving up on their mother”.

The Official Solicitor supported the Trust’s application, having heard all of the evidence.

The Law:

This case helpfully sets out the law in the sphere of medical treatment decisions for incapacitated persons, noting that whilst the law is settled and relatively easy to state, the application of it is always intensely difficult “involving, as it invariably does, the intersection of ethics, medicine, the law and, not infrequently, religious belief”.

In particular, it sets out the court’s role where a patient lacks capacity to consent to medical treatment, noting that the focus is on “whether it is in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold or withdraw it” (per Aintree v James [2013] UKSC 67).

It further sets out that, whilst there is a powerful presumption in favour of approving life-sustaining treatment, this is not absolute.

Factual Background:

This case concerned Jordan Tooke, a 29-year-old man with a diagnosis of autism, severe learning disabilities and William’s syndrome. In the 12 months prior to the hearing, Jordan had been diagnosed with chronic kidney disease, and had entered end-stage renal failure. Without haemodialysis treatment, his condition would be fatal.

Jordan had a long-standing phobia of hospitals in general, and needles in particular, as a result of which, he would be unlikely to be able to tolerate haemodialysis treatment without sedation.

The application was brought by the Trust for determination of whether it was in Jordan’s best interests to undergo haemodialysis under sedation. The Trust’s position was that haemodialysis under sedation would be risky and potentially distressing, and was not in Jordan’s best interests. They favoured the “predictable and controlled” option of palliative care. Jordan’s parents, on the other hand, considered it in Jordan’s best interests to receive treatment.

Jordan’s parents’ position was supported by the Official Solicitor on behalf of Jordan.

Hayden J’s judgment paints a clear picture of Jordan’s personality and values, describing him as having “almost universally irresistible charm”, and as having an “irrepressible sense of fun”, a “zest for life”, and an “enthusiasm for the world” which is “striking and voracious”.

Hayden J noted that this case was essentially about life-sustaining treatment, and in particular, whether it would be lawful, right and in Jordan’s best interests to receive haemodialysis even where that can only be achieved by the unusual measure of intravenous sedation throughout the process.

The Law:

This case helpfully sets out the law in respect of the weight to be given to expert evidence, and the need to consider that expert evidence in the context of all the other evidence, including consideration of “welfare in the wider sense, not just medical but social and psychological” (per Aintree v James [2013] UKSC 67).

Hayden J noted that, when considering best interests, the court must weigh into the balance the person’s unique value as a human being, the obligation of the State to ensure that he is afforded the same opportunities as those who do not share his disabilities and his fundamental right to life where that can either be achieved or, where it can be strenuously promoted”.

Factual Background:

This case concerned Ms H, a 26-year-old woman with a diagnosis of Schizoaffective disorder, who was detained under section 3 of the Mental Health Act 1983. Ms H was pregnant, and with one exception, she had been consistent in her wish to have a termination.

The Trust brought this application for determination by the court of i. whether Ms H has capacity to make a decision to consent to terminate her pregnancy; ii. if she lacks capacity in respect of this matter, whether a termination is in her best interests or not; and iii. if a termination is in her best interests, whether this should be carried out by a medical or surgical procedure.

It was established that the test under section 1(a) of the Abortion Act 1967 was met (i.e. two registered medical practitioners had in good faith formed the opinion that the pregnancy had not exceeded its 24^th week, and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to Ms H’s mental health).

It was agreed as between the parties before the court that Ms H lacked capacity in this domain, and that it was in her best interests to have a termination. The more difficult question was whether the termination should be carried out medically or surgically. Ms H’s strong wish was to have a medical termination.

The Law:

In terms of capacity, the judge endorsed the decision of HHJ Hilder in S v Birmingham Woman’s and Children’s NHS Trust [2022] EWCOP 10 as to the relevant information for the purposes of a decision to terminate a pregnancy. Further, the judge distinguished Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1471 (COP) (a case where a pregnant woman experiencing paranoid thoughts was found to have capacity to decide whether to terminate her pregnancy).

Turning to best interests, the judge helpfully set out the dicta of Lady Hale in Aintree v James [2013] UKSC 67, as well as the dicta of Munby J in Re X (A Child) [2014] EWHC 1871 (Fam) (a case which considered whether it was in a child’s best interests to terminate her pregnancy).