On 3 July 2015, Paul Briggs was the victim of a road traffic accident when he was travelling to work on his motorcycle. As a result of that accident he suffered serious brain and other multiple injuries and was rendered unconscious. He was minimally conscious state (MCS) and does not have the capacity to make decisions relating to his care and treatment or to communicate his wishes and feelings to others. His survival depended on the package of the care and treatment he was receiving in hospital. That care and treatment included clinically assisted nutrition and hydration (CANH). If that treatment was no longer given he would die.
In circumstances described in our case note on the earlier decision in this case ( EWCOP 48), his wife brought proceedings on their face to challenge the DOLS authorisation in place at the hospital where he was being cared for, but in reality to seek a determination as to whether it was in her husband’s best interests to continue to be given CANH or to be moved to a hospice where he would receive palliative care but no further CANH, and would, as a result, die.
His family and a police colleague of Mr Briggs described – in oral evidence the force of which Charles J described as not being easy to convey to those who had not heard it – a picture which convinced Charles J:
in the sense that I am sure (and so have no reasonable doubt) that if Mr Briggs had heard the evidence and argument that I have, including the evidence about his best case scenario and the possible distress, pain and difficulties he and his family may face if his CANH treatment is not continued he would have would have decided not to give consent to the continuation of his CANH treatment. I add that he would have been supported in this decision by his family and they would have faced the tragic consequences of his accident together (paragraph 98).
There was therefore, in light of the approach taken by the treating NHS Trust and CCG, a profound clash of principles identified by Charles J at paragraph (28) of his overview between:
1. The sanctity of life and so the preservation and prolongation of Mr Briggs’ life. Understandably this lies at the heart of the strongly held and consistent view of Mr Briggs’ treating consultant that it would be unethical to withdraw his treatment by CANH and so deprive him of the opportunity of leading a life of value.
2. Autonomy and so self-determination which enables a person with capacity to do so to refuse life-sustaining treatment and so as a consequence to choose the side-effect of death. That decision can be made for any reason including that in existing or defined future circumstances that person considers that his or her life is or would be intolerable or has or would have no value and so not worth living. Understandably, the family want to achieve the result that they are convinced Mr Briggs would have wanted and decided on.
The Official Solicitor, as litigation friend for Mr Briggs, contended that the court should adjourn the matter for reconsideration after 6 months of treatment and rehabilitation which would allow a better informed neurological diagnosis and prognosis. The most realistic best case scenario, it was said, would be that, ultimately, Mr Briggs would:
- Not regain mental capacity to make complex decisions
- Be happy
- Be able to make simple choices such as what colour t-shirt to wear
- Have some pleasurable experiences
- Have some painful experiences
- Be unlikely to be depressed given his lack of insight, including lack of insight as to his pre-injury life, and pre-injury expressed wishes and feelings
- Not have any improvement in his physical abilities
- Be severely physically impaired
- Need 24 hour care and be dependent on others for all activities of daily living
- Have some improvement in his medical symptoms with the optimal treatment that would be available, including PSH, dystonia, groaning and contractures.
Because of the way in which the case was put by the NHS bodies (and the Official Solicitor), Charles J was required to go back to first principles as regards the construction and application of the MCA 2005, and also to conduct a detailed review of the case-law. This required him to consider, inter alia:
1. The background law and principles (paras 8-42), including – importantly – an analysis of the significance of Advance Decisions to Refuse Treatment and powers of attorney. As Charles J noted (at para 28), the sections of the MCA relating to these provisions “are directed to enabling people with the relevant capacity to make choices refusing a wide range of future treatment (including life-sustaining treatment), or to giving donee(s) of a lasting power of attorney power to give or refuse consent to refuse any such treatment, at a time when the donors lack capacity and when, because of brain or other injuries, they may be very different and have very different perspectives on a whole range of issues including the quality of their life.” This therefore carried with it the conclusion that “the right to self-determination can dictate future decisions or steps to be taken in future” (para 30);
The making of best interests decisions (including by the court) in respect of life-sustaining treatment (paras 43-75), including in particular, an identification of the “holistic” approach to the application of the MCA identified by the Supreme Court in Aintree and its implications. Whilst Charles J emphasised that the test to be applied by the court is not – in general – a “what P would have done test,” but a test requiring weighing and balancing, he expressly endorsed, “as showing that P is at the very heart of the decision-making process,” the approach originally set down by HHJ Marshall QC in S and S (Protected Persons)  1 WLR 1082, namely that:
55. In my judgment it is the inescapable conclusion from the stress laid on these matters in the 2005 Act that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P’s views, and to encourage P to be involved in the decision-making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself.
56. The 2005 Act does not, of course, say that P’s wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P’s “best interests”. However, by giving such prominence to the above matters, the Act does, in my judgment, recognise that having his views and wishes taken into account and respected is a very significant aspect of P’s best interests. Due regard should therefore be paid to this recognition when doing the weighing exercise of determining what is in P’s best interest in all the relevant circumstances, including those wishes.
3. At para 53, Charles J further emphasised that, whilst there is a strong presumption – which set the default position – that it is in a person’s best interests to stay alive, it is a starting point but does not dictate what the relevant person’s attitude (wishes and feelings) are now or were in the past. At para 62(ii) made clear that “if the decision that P would have made, and so their wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life.” Perhaps the core of his decision is to be found at paragraphs 69 to 74 thus:
69. […] the MCA requires a holistic and enabling approach and in my view this means that the court can and should take a realistic approach to the way in which people conduct their lives and make their decisions and so:
(i) firstly make findings on the evidence relating to the matters set out in s. 4(6) on the attitude and approach of the relevant individual when he or she had capacity to the fundamental and deeply personal principles now at stake relating to the giving or continuance of life-sustaining treatment, and then
(ii) apply those findings to the relevant circumstances in which the best interests decision now has to be made on whether life-sustaining treatment should be given or continue to be given to that person, to determine what decision he or she would have made if they now had capacity and so, in exercise of their right of self-determination was able to make the decision.
70. At step (ii), the court will address points that the evidence shows that the relevant person (P) did not specifically consider aspects of the present situation (e.g. being in MCS, the detail of his or her present position and best case scenario, difficulties and consequences of withdrawing CANH) and take them into account in a holistic way with all other factors, including the strong presumption in favour of preserving life and so the powerful instinct for survival, in determining how they would affect the attitude and choice of that particular P.
71. I acknowledge and urge that the evidence and reasoning relied on to reach a conclusion that P would not have given consent to the relevant life-sustaining treatment, and then to rely on it as a weighty or determinative factor to depart from the default position that P’s best interests are promoted by preserving his or her life, require close and detailed analysis which founds a compelling and cogent case that this is what the particular P would have wanted and decided and so considered to be in his or her best interests.
72. It is also obvious that the existence of a relevant written statement (referred to in s. 4(6)(a)) would be helpful and so of particular relevance in the way that an advance directive or living will was before the MCA was enacted. But it is also obvious that in real life many if not most relevant expressions of wishes and feelings will not be in writing.
73 This approach promotes the protection and preservation of life of severely disabled people who lack capacity and whose survival is dependent on life-sustaining treatment because it requires that the factors assessed on a past and present basis are sufficiently compelling to outweigh the very strong presumption that underlies the default position (see for example and by analogy the citation from and the decision in In re AK (Medical Treatment: Consent)  1 FLR 129 at paragraph 83 of Baker J’s judgment in Re M). As I have said, that intense analysis will address points that the evidence shows that P did not specifically consider aspects of the present situation.
74. I have deliberately not tried to set out how convinced the court has to be about what P would have decided if he or she was able to do so because, in my view, the weighing exercise is so case and issue sensitive and is not a linear or binary exercise, and because here I am sure (in the sense that I have no reasonable doubt) on the decision that Mr Briggs would have made if he was able to do so.
4. Earlier cases (paras 76-82), in which Charles J analysed previous case-law, and found made clear that he preferred the (post-Aintree) approach taken by Pauffley J in United Lincolnshire Hospitals NHS Trust v N  COPLR 60 and that of Hayden J in Re N  COPLR 88, to that taken (pre-Aintree) by Baker J in W v M  1 WLR 1653;
5. The effect of s.4(5) MCA 2005 (paras 83 to 94), Charles J having little difficulty dispensing with the argument that s.4(5) MCA precluded him from making a welfare order/declarations which would have the effect of bringing about Mr Briggs’ death.
At the end of his judgment (which also included a careful rehearsal both of the medical evidence and the powerful evidence as to Mr Briggs as a person), Charles J concluded that:
128. In my view, on an in all the relevant circumstances approach to the very difficult issue in this case the weighing exercise comes down to whether Mr Briggs’ best interests are best promoted by giving more weight to:
(i) the very strong presumption in favour of preserving life, or
(ii) the great weight to be attached to what Mr Briggs as an individual would have decided himself if he had the capacity and so was able to do so.
129. I have concluded that as I am sure that if Mr Briggs had been sitting in my chair and heard all the evidence and argument he would, in exercise of his right of self-determination, not have consented to further CANH treatment that his best interests are best promoted by the court not giving that consent on his behalf.
130. This means that the court is doing on behalf of Mr Briggs what he would have wanted and done for himself in what he thought was his own best interests if he was able to do so.
Charles J therefore granted the order sought by Mrs Briggs. As we went to press, the Official Solicitor was seeking permission to appeal, the order of Charles J being stayed in the interim. Whilst we understand that the basis of this application is the direction that Charles J gave himself as to the weight to be afforded to the presumption in favour of life, it is also clear that Charles J was concerned by the approach taken by the Official Solicitor to the family’s evidence:
97. The Official Solicitor, or his lawyers, rejected the warning given by Hayden J in Sheffield Teaching Hospitals NHS Foundation Trust v TH  EWCOP 4 where the judge said that his lawyers had not absorbed the force of the emphasis placed on a holistic evaluation by the Supreme Court. Worryingly, as in the case before Hayden J, the Official Solicitor, through his lawyers, sought to rely on the ways in which Mr Briggs’ mother and one of his brothers had expressed themselves as a basis for weakening the force of their evidence. It would be surprising if loving family members did not express themselves in terms that differed in some respects and arrived at their conclusions for reasons that differed in some respects and over different periods of time. Complete consistency of approach and expression would give rise to more concern. I express the hope that the Official Solicitor will in future not seek to test family evidence in such a pedantic and so unsympathetic and unhelpful a way.
[Update: the Official Solicitor subsequently indicated that he would not pursue his application for permission to appeal].
This judgment represents – we suggest – the paradigmatic application of the principles at the heart of the MCA 2005 governing best interests decision-making, as interpreted (or, more properly perhaps, confirmed) by Lady Hale in Aintree. Charles J sought carefully – and with due caution given the potential impact of his decision – to make the decision that was right for Mr Briggs as an individual human being.
Running through the judgment as an unspoken (and possibly unrecognised) undercurrent is Article 12(4) of the Convention in the Rights of Persons with Disabilities, as the various parts of the Act that Charles J explored and analysed seek to provide in different ways for the upholding, insofar as possible, of an individual’s legal capacity notwithstanding their present inability to make their own decisions.
Whilst not strictly relevant (on one view) for his analysis, Charles J’s exegesis of the role of LPAs and ADRTs make clear how such are designed to operate as important – empowering – tools to secure the right of self-determination even in the face of subsequent (mental) incapacity. In this regard, of particular importance are:
1. His clarification (at para 20) as to the precise requirements of ADRTs concerning life-sustaining treatment, noting that to call them “stringent” (as did Baker J in W v M) is to overstate the case, because they do not require that the person making it has any particular knowledge or have had any particular advice. Indeed, as Charles J noted at para 22, “what is provided is less stringent that what the common law requires for the signing of a bank guarantee;”
2. The confirmation that whilst there are “safety nets” in the form of s.25(2)(c) and 25(3) MCA, setting a low threshold for rendering an ADRT invalid – whether on the basis of the sanctity of life or otherwise – “would run counter to the enabling intention of ss.24 to 26 MCA 2005” (para 22). As he noted, further, even if the provisions did show that the ADRT was invalid or inapplicable, such that the best interests test became determinative, the court would nonetheless have to take into account the impact of the removal of the person’s right to self-determination that they have sought to exercise by making the advance decision (para 22);
3. The clear statement (at para 31) in determining what is to happen to, or in respect of them in future (whether by making an ADRT: “In making that decision individuals will not know what they will actually feel or want and so have to predict it. To make that prediction they will take into account a range of factors relating to their beliefs, values, lifestyle, wishes and feelings. That is not an easy task for them and their personal history, character, wishes, feelings, belief and values will be central to their performance of it;”
4. Confirmation that where an individual does not make the future decision themselves but gives a donor of an LPA the power to make it, the donor(s) will be making the decision for themselves “in light of the circumstances that exist at the time and with their knowledge of what the donor would have wanted them to do” (para 32, emphasis added). It is a matter of some regret that Charles J did not confirm expressly what follows as a logical consequence of these propositions (and we suggest clearly flows from the wording of the Act itself), namely that where there is in place a valid and applicable ADRT and/or an attorney with the requisite authority there is no need for application to court before treatment is either withdrawn or withheld, there being no “space” for the court to make any best interests decision on the person’s behalf. Charles J certainly recognised that there would be no such space (see para (10) of his overview and his agreement that if Mr Briggs had made a relevant ADRT “such an advance decision it would have been decisive and so no decision would have had to have been made under the MCA best interests test”), and we suggest that this provides a strong – obiter – pointer that an application is not required. Similarly, where a person has not provided formally for the future exercise of their right of self-determination, the approach adopted by Charles J prioritises, at least in the specific case of determining whether consent should be given or refused to life-sustaining treatment, the identification and then the formal adoption of the decision that P would have made. Importantly, however, Charles J – correctly – made clear that the best interests test is not a simple “substituted judgment” test. To that extent, and as discussed in the EAP Reports on the compatibility of the MCA with the CRPD, the test is not compatible with Article 12 as interpreted by the UN Committed on the Rights of Persons with Disabilities. However, the list of situations he gives at para 60 of where the court is not enabling P to do what he could or would want do for him or herself if of full capacity is instructive:
(i) P’s history may show that he or she has made a series of damaging investment or lifestyle decisions and so although if they had capacity they would be likely to do so again the court (or other decision maker) can conclude that it would not be in their best interests for such a decision to be made on their behalf,
(ii) it is not uncommon that what P would have wanted and would now want is not an available option,
(iii) it is not uncommon that very understandable expressions of present wishes and feelings “I want to go home” would not be made if P was able to weigh the existing competing factors by reference to P’s beliefs and values, and in any event are not in P’s best interests, although current expressions of wish can inform which of available alternatives has the best chance of being successfully implemented,
(iv) the point that an individual and a court cannot compel a doctor to give certain types of treatment is a factor in cases relating to life-sustaining and other treatment (as an individual can only exercise his or her right of self-determination between available choices), and
(v) the existence of clinical conditions, physical illness and the types of life-sustaining treatment (e.g. resuscitation or treatment in intensive care) and the pain or loss of dignity they cause can be highly relevant factors in reaching a conclusion contrary to the evidence of P’s family that P would have wished treatment to continue (see for example NHS Trust v VT  COPLR 44, a decision of Hayden J).
Two of these situations ((ii) and (iv)) in particular are ones where (on a proper analysis) P’s lack of capacity is irrelevant – they could not get what they would or do now appear to want whether or not they were said to have the mental capacity to make the decision. The third of the situations represents one where it might properly be said that there might well be a clash between P’s present wishes and feelings and their pre-existing beliefs and values: or, framed in CRPD terms, that there is a clash between their will – if such is intended to capture a more ‘essential’ aspect of the person – and their (more immediate) preferences. The first and last of the situations (in particular the first) represent an approach to best interests which would appear to prioritise a more “objective” view of what would best serve the person. But in none of them, and crucially, does Charles J suggest that it is not important to seek to ascertain P’s wishes and feelings in relation to the matter. Further, in each situation it is arguable that what the court is seeking to do is to find a way to weigh and balance those wishes and feelings against other factors: in other (CRPD) words to find a way to “respect the rights, will and preferences” of the person. It is in teasing out precisely what “respect” means in this context that the real demands of Article 12(4) CRPD will make themselves clear.
Interestingly, Charles J notes at a different part of the judgment (para 49) that his approach to resolving the potential for an inconsistency between past and present wishes and feelings is to place less weight on present wishes, as “what the relevant person says, does, demonstrates or communicates about the matters referred to in s.4(6) has to be assessed against the background that he or she does not have capacity to make the relevant decision and so to weigh those matters with the relevant factors.” This may be a matter which falls for further consideration in a case where such a mismatch is in fact in issue (as was not the case here). We also note a rather different way in which a mismatch was approached in the case of SAD v SED discussed in the Property and Affairs section of the December Newsletter.
We note, finally, that whilst paragraph 48 might be read as suggesting that doctors are entitled to place a higher weight upon “medical” or “ethical” (for which we read “a belief in the sanctity of life”) matters than upon what P might have wanted, this must be read in its context of a dispute between the family and the treating team as to where P’s best interests lie which is before the court to be resolved. Further, we certainly do not read this paragraph as suggesting that all disputes as to medical treatment, as the very essence of decision-making under the MCA should be collaborative (see G v E (Deputyship and Litigation Friend)  EWCOP 2512 at para 57:
The Act and Code are therefore constructed on the basis that the vast majority of decisions concerning incapacitated adults are taken informally and collaboratively by individuals or groups of people consulting and working together. It is emphatically not part of the scheme underpinning the Act that there should be one individual who as a matter of course is given a special legal status to make decisions about incapacitated persons. Experience has shown that working together is the best policy to ensure that incapacitated adults such as E receive the highest quality of care),
There are, further, a host of mechanisms to enable disputes to be resolved without recourse to the court (see, in particular, in this regard, the work of the Medical Mediation Foundation).
Of course, the question of whether cases of this nature have to come to court even where there is no dispute is a currently a very hot topic (see inter alia my post and article on the topic, and the article by Lynne Turner-Stokes in the Journal of Medical Ethics), but that is not a matter upon which Charles J touched in his judgment.
 It also appears from the ‘Storify’ – the curated collection of Tweets from the hearing and supporting materials gathered by Celia and Jenny Kitzinger – relating to the case that Charles J may have had concerns about the approach of the clinicians, but these do not appear to feature in the judgment.