The small body of appellate level jurisdiction on the MCA has been added to in Re RW  EWCA Civ 1067, concerning the continued provision of clinically assisted nutrition and hydration (CANH) via a nasogastric (NG) tube to an elderly man with end stage dementia. The question that had been before Parker J had been whether, if and when he was discharged home from hospital, it would be in his best interests for him to be discharged with an NG tube in place (as his family contended), or whether the NG tube should no longer be maintained upon discharge (the position of the Trust and the Official Solicitor on his behalf). Parker J endorsed the position of the Trust/Official Solicitor; the man’s family sought permission to appeal.
Refusing permission to appeal (the judgment therefore not standing as a precedent), the Court of Appeal emphasised the high hurdle for challenging a decision made at first instance as to best interests, especially where the judge has directed themselves correctly as to the law. Both Sharp and Peter Jackson LJJ (the latter delivering his first Court of Appeal judgment in this area) also made interesting observations about the place of wishes and feelings in best interests decision-making especially where – as here – there was no reliable evidence as to what the individual in question might have done. Peter Jackson LJ noted that “[t]he Law Commission’s recent review of the law relating to Mental Capacity and Deprivation of Liberty Safeguards recommends a legislative addition to s.4(6), so that decision-makers should ‘give particular weight to any wishes or feelings ascertained’. In its response on 14 March 2018, the Government accepted this recommendation, noting that the principle of taking account of an individual’s wishes and feelings is very important and already represents good practice.”
Peter Jackson LJ further emphasised that in considering serious medical treatment decisions, the Court of Protection: “must have the realistic treatment options clearly in mind. There is no purpose in deciding whether a particular option is in the best interests of the patient if it is not in fact known to be available. In RW’s case, there is considerable uncertainty as to whether any hospital would re-intubate him after discharge from hospital, and that to my mind was a matter that the judge would have needed to further investigate if she had been minded to conclude that the NG tube should be maintained.”
Finally, the court also had cause to consider the question of transparency, it being contended (unsuccessfully) that the man would have wished his name to be put into the public domain.
Further coverage of this judgment (which also contains useful discussion of good medical practice in the context of end stage judgment) will be forthcoming in the next Mental Capacity Report.