In An NHS Trust v AF & Anor  EWCOP 55, Poole J has answered an important question that has – oddly – not been definitely determined previously: when does a decision of the Court of Protection stop being binding? The question is important, given that the court has to make decisions about capacity and best interests on the facts as they are at the point of its decision, but we know that it is entirely possible for those facts to change.
The case is the follow up to the decision of Mostyn J in March 2020 A CCG v AF  EWCOP 16, in which it had been held that it was in the best interests of a man called AF, a man in his mid-seventies who following a stroke in May 2016, to continue receive Clinically Assisted Nutrition and Hydration (‘CANH’) via a PEG. That decision was not appealed by his daughter, who had argued strongly that he would not have wished to continue to be fed.
At that point, the PEG tube had been in place since 2016 and they usually last for two to four years before requiring replacement. Therefore, in March 2020 it could have been expected that re-insertion would soon be required. However, the court in March 2020 was not made aware of that expectation and therefore the order made did not expressly cover the need for reinsertion of the PEG tube.
After the judgment of Mostyn J, AF continued to live at his care home receiving CANH via his PEG without incident until on 28 August 2020 the PEG tube became blocked. After an overnight admission to hospital the blockage resolved and he was discharged back to the care home. On 9 October 2020 the PEG tube fell out. It is likely that the bumper which helped to keep the tube in place, failed due to wear and tear. AF was taken to the Emergency Department of the Applicant Trust’s hospital and was admitted under the care of the gastroenterology team. A feeding tube was inserted, not for the purpose of administering hydration and nutrition, but to maintain the patency of the PEG tract. AF was able to consume food orally and sometimes does so, but with no gastrostomy in place he was not receiving sufficient nutrition to sustain life. By order of Williams J on 16 October 2020, the feeding tube was removed and a balloon gastrostomy (‘BG’) inserted. AF was discharged back to the care home on 20 October 2020. A BG will typically last for about three months before having to be replaced.
AF was then admitted to hospital again on 28 October when very unwell with pneumonia. The evidence before the court was, however, that he was a good condition nutritionally and was physiologically robust such that when he recovered from his pneumonia, it was likely that he would be fully restored to his pre-pneumonia condition. The consultant gastroenterologist’s evidence was that she would expect, other things being equal, that with continued CANH he could live for a few more years yet.
Poole J was asked to declare that it was lawful (when AF was medically sufficiently fit) to undergo insertion of a PEG.
AF’s daughter argued that was that it was not in AF’s best interests to have the PEG re-inserted or to continue to have CANH. She went further, contending that it was not in AF’s interests to receive any active treatment, including antibiotics, or blood tests for the purpose of monitoring and investigation, and that it was in his best interests to be placed back on an end of life pathway as had briefly been overnight on 28th and 29th October 2020. She told that the court she thought that the BG should now be removed.
Poole J outlined the decision that Mostyn J had reached, and the evidence that had been before him in March 2020. At paragraph 19, he noted that:
The judgment was not appealed. The question now arises as to the extent to which, if at all, my evaluation of AF’s best interests should be circumscribed by the findings made by Mostyn J seven months ago.
The three parties before him (the Trust, the Official Solicitor, and AF’s daughter) proposed slightly different formulations of the approach that should be adopted. At paragraph 22, Poole J set out that:
both principle and good practice point to the same approach to this application in which the court is being asked to make a best interests evaluation only a few months after another court has made a determination of best interests in respect of a similar decision, concerning the same P, and after a full hearing.
(a) There is no strict rule of issue estoppel binding on the court.
(b) Nevertheless, the court should give effect loyally to a previous judicial finding or decision that is relevant to the determinations it has to make, and should avoid re-opening earlier findings that cannot be undermined by subsequent changes in circumstances. An example would be a finding that P lacked capacity at a particular point in time. Such findings, if not successfully appealed, should generally only be re-opened if new evidence emerges that might reasonably have led the earlier court to reach a different conclusion.
(c) Where there has been no material change of circumstances subsequent to a previous judgment, no new evidence that calls for a re-opening of the earlier findings, and the earlier evaluation of best interests clearly covers the decision that the new court is being asked to consider, appropriate case management might involve the court summarily determining the new application.
(d) Determinations of capacity and best interests are sensitive to specific decisions and circumstances, therefore the court will exercise appropriate restraint before making any summary determination.
(e) f the decision or circumstances that the new court is being asked to consider are not clearly covered by the earlier judgment, or there has been a material change of circumstances or new evidence that calls into question the previous findings, the court should manage the case in a way that is proportionate having regard to the earlier judicial findings and decisions.
(f) In dealing with the new application proportionately, the court’s focus will be on what has changed since the previous ruling, and any new evidence. It should usually avoid re-hearing evidence that has already been given and scrutinised in the earlier proceedings.
Applying that approach to the facts of the case, all parties “pragmatically agreed that the failure of the PEG on 9 October 2020 was a material change in circumstances that had not been expressly contemplated by the court in March 2020, and that therefore the decision to re-insert the PEG was a new decision for the Court to consider. Similarly, there was no argument against approaching AF’s recent hospital admission for pneumonia as a change in circumstances that required a best interests evaluation, in particular given SJ’s position that treatment for it should cease” (para 23). Poole J observed that “[i]t might have been contended, but was not, that it was implicit in Mostyn J’s determination that re-insertion of the PEG was in AF’s best interests because it was necessary to ensure the continuation of CANH. The focus of the evidence before me was therefore on developments since Mostyn J’s judgment.”
That having been said, Poole J held that:
24. Nevertheless, Mostyn J’s conclusions are highly material to my evaluation of best interests in relation to these new decisions. Indeed, it would be wrong in my judgment to re-open his findings that (i) AF had lacked capacity in 2016 when he made statements indicating that he wanted to die; (ii) as of March 2020 AF derived “pleasure and satisfaction” from his life; and (iii) AF’s statements before his stroke, that he would not want to be kept alive as a “body in a bed”, were not applicable to his condition in March 2020. Those findings cannot be altered by subsequent events and there is no new evidence to demonstrate they could now be challenged. I also give significant weight to Mostyn J’s very firm conclusion that at the time of his judgment it was in AF’s best interests to receive continuing CANH through his PEG.
Having considered the further evidence as to developments since March 2020, Poole J was “quite satisfied” (paragraph 28) that it was in AF’s best interests to undergo re-insertion of the PEG.
Importantly, and no doubt reflecting on what had happened since March 2020, Poole J concluded at paragraph 30 by observing that:
The court cannot predict every treatment decision that may have to be made over the remainder of AF’s life. However, all parties agree that there ought to be an ongoing care plan, in accordance with guidance from the BMA at section 2.7 of its document, “CANH and adults who lack the capacity to consent – guidance for decision-making in England and Wales.” The Trust has agreed to write to the GP and CCG to inform them of this judgment and to ask them to use their best endeavours to ensure advance care planning now takes place, the CCG will be asked to put advance care planning on the agenda for the forthcoming best interests meeting that has been convened to determine whether AF should change GPs.
Strong views have been expressed both about the original decision of Mostyn J (including the process of the hearing itself, one of the very first to be held remotely during the pandemic) and about the merits of the judgment reached by Poole J. I do not comment upon those views here, although I do note that the judgment of Poole J makes very clear the potential consequences for a person who does not agree with the outcome of a decision but does not seek to appeal it.
For present purposes, I focus upon the approach taken to Poole J to how to answer the question of what to do where the Court of Protection has previously considered an issue. Now that the Court of Protection has been ‘in business’ in its current form for 13 years, there are a substantial number of cases where decisions made both as to capacity and best interests on the evidence available at the time simply do not now fit. It had never been entirely clear what was to happen in such circumstances, and this decision very helpfully resolves this ambiguity.
Although strictly only relating to the position where the court, itself, is being asked to revisit an earlier decision, the logic of this judgment applies equally outside the courtroom. If anyone does not agree with the decision when it is made, they should appeal. Otherwise, and in the same fashion as applies in the mental health setting, then unless there has been a material change of circumstances or new material that could not have been known to the court at the point when it had made its decision (whether as to capacity or best interests), those concerned should loyally follow the decision. In legal terms, their belief as to the individual’s capacity and best interests will only be “reasonable” (and hence enable them to be protected from liability by s.5 MCA 2005) if it is what the court has decided. If there has been such a change of circumstances or new material, they may conclude that they may now reasonably be able to come to a different conclusion about either the person’s capacity or best interests. However, especially if the conclusions of the court were reached after it had had to resolve a dispute about capacity or best interests, it would always be sensible to consider obtaining legal advice as to whether they can simply proceed on the basis that the facts have now changed, or whether it is necessary to go back to court to ask for the original decision(s) to be revisited.
Entirely separately, the judgment is also of considerable importance in reminding us of the importance of ensuring that there is ongoing consideration of whether CANH is in the best interests of the person, rather than simply making a decision at point A in time and assuming that this will remain fixed for all time. It is helpful, therefore, in terms of emphasising that guidance as to how this can and should be done has been given by the BMA and RCP (with the endorsement of the GMC).
 Note, this is not the same as the situation where the court is aware at the time that the case is before it that the person’s capacity to make the relevant decision(s) may fluctuate and expressly sets out contingency planning. This position has now helpfully been considered and resolved in GSTT & SLAM v R  EWCOP 4.