Law and Rights
Updated 19th June and 20th June
"We only live once ? we are born once and we die once ? and the difference between life and death is the biggest difference we know" - Peter Jackson J
In the Court of Protection, Peter Jackson J has given judgment in A Local Authority v E [2012] EWHC 1639 (COP). See The Guardian 15th June 2012 - "Anorexic woman should be fed against her wishes, judge rules" - and listen to Dr Tony Calland of the British Medical Association Ethics Committee.
In relation to the law, Peter Jackson J had the benefit of Baker J's comprehensive survey of the law relating to withdrawal or withholding of life-sustaining treatment in W v M and others [2011] EWHC 2443 (COP). Nevertheless, Peter Jackson J set out, in a straightforward manner, the relevant law at paragraphs 7 to 15 of his judgment and he stated that - "the court has to approach its task in a highly individualised way, focusing on the situation of the individual concerned" (para 12). European Convention rights engaged were Articles 2, 3 and 8. On these see the judgment at paras. 119-123 (Art 2); 126 (Art 3) and 124 (Art 8).
It is interesting to note the judge's observations (para. 17) relating to how E had been "treated in the community" as a result of the failure of the residential placements and the unavailability of further funding. This led to a ?revolving door? series of emergency admissions for medical and psychiatric care, often after she was found in a collapsed state after drinking as much as a bottle of spirits a day. A person such as E, with anorexia of the most severe and intractable kind, is incapable of recovery without major medical intervention (para. 26).
Advance Decisions to refuse treatment - NHS Guide for Health and Social Care Professionals
CharonQC 18th June 2012 - "The right to sign our own 'death sentence', The right to die and to refuse medical treatment or intervention."
Update 19th June - Daniel Sokol - As hard as it gets: the case of anorexic E and the right to die - The Guardian 19th June
Update 19th June - Richard Mumford - Judge orders that anorexic woman can be force fed: analysis - UK Human Rights blog
- Ian Brady - Tribunal Hearing June 2013
It was in 1966 that Ian Brady and Myra Hindley were convicted at Chester Assizes* (Fenton Atkinson J and a jury) of the murders of children. Both were sentenced to life imprisonment. Hindley died in November 2002. Brady has been held...
- A Trilogy Of Important Family Law Cases
July has been a legally busy month with numerous court decisions and other events. August is usually a little quieter but we shall see! In this post I draw attention to three recent cases which illustrate the immensely difficult work undertaken...
- Article 2 Duty On Nhs Trust: .... Supreme Court Decision
Roses at Lyme ParkUpdates 14th and 15th February On 20th April 2005, Melanie Rabone (aged 24) committed suicide by hanging herself from a tree at Lyme Park, Disley, Stockport. At the time, Melanie was on "home leave" from hospital where she was...
- Liberty: Deprivation Or Restraint?
The Trinity Law term ran from 7th June to 29th July and produced some important decisions. The Michaelmas Law Term does not start until 3rd October so the senior courts will be relatively quiescent until then. This provides an opportunity...
- Court Of Protection .... Is For The Weak And Vulnerable Not The Rich And Famous
Over recent weeks, there has been massive coverage of the use of injunctions to protect the private lives of various "celebrities" - (who can afford to bring these cases to court). Then there has been the case in the European Court of Human Rights...
Law and Rights
Court of Protection ~ Anorexic patient ~ Capacity to refuse treatment
"We only live once ? we are born once and we die once ? and the difference between life and death is the biggest difference we know" - Peter Jackson J
In the Court of Protection, Peter Jackson J has given judgment in A Local Authority v E [2012] EWHC 1639 (COP). See The Guardian 15th June 2012 - "Anorexic woman should be fed against her wishes, judge rules" - and listen to Dr Tony Calland of the British Medical Association Ethics Committee.
Paul Bowen QC and Stephen Broach (of Doughty Street Chambers) appeared for the Local Authority; Christopher Johnston QC and Susanna Rickard (of 3 Serjeants Inn) were instructed by the Official Solicitor and represented the patient who is referred to as E. The Health Authority was represented by Mark Mullins (Outer Temple Chambers). E's parents represented themselves and, according to the judge, they "contributed significantly to the hearing without giving formal evidence, by giving their views and by asking well-chosen questions of the doctors."
Doughty Street Chambers have a report on the case and a link to Peter Jackson J's judgment - here. This is a very well-written judgment which merits a complete reading. The judgment is an application to the particular case of existing law but a number of important points are made by the judge. The judgment is also available via Bailii - Re E (Medical treatment: Anorexia).
The judge had to decide
whether it was in the best interests of E - (a woman, aged 32, with severe anorexia) - to be allowed to die even though she was neither terminally ill nor in a persistent vegetative state. E suffered from a number of conditions described as "a triad of anorexia, alcoholism and personality disorder." When the local authority brought the case to court, E was close to death and was following a palliative care pathway, agreed by her family and treating clinicians. The poignant history of E's life is set out at paragraphs 16 to 22 and her medical conditions are described at para.23.
whether it was in the best interests of E - (a woman, aged 32, with severe anorexia) - to be allowed to die even though she was neither terminally ill nor in a persistent vegetative state. E suffered from a number of conditions described as "a triad of anorexia, alcoholism and personality disorder." When the local authority brought the case to court, E was close to death and was following a palliative care pathway, agreed by her family and treating clinicians. The poignant history of E's life is set out at paragraphs 16 to 22 and her medical conditions are described at para.23.
Decisions on three issues were required (para 46) and it was necessary to take them in the following order.
(1) Did E have the mental capacity to make decisions about her treatment? The judge answered NO - paras. 47-53.
(2) Did E have mental capacity when she made an advance decision in October 2011. Again, NO - paras. 54-70. Interestingly, it may have been the case that E had acted inconsistently with her purported advance decision but the judge did not have to decide this point since he had held that the advance decision was invalid for lack of capacity.
Para.65 is worthy of note by practitioners in relation to assessing the mental capacity of a patient who wishes to make an advance decision. The judge said: "Against such an alerting background, a full, reasoned and contemporaneous assessment evidencing mental capacity to make such a momentous decision would in my view be necessary. No such assessment occurred in E's case and I think it at best doubtful that a through investigation at the time would have reached the conclusion that she had capacity."
Para.65 is worthy of note by practitioners in relation to assessing the mental capacity of a patient who wishes to make an advance decision. The judge said: "Against such an alerting background, a full, reasoned and contemporaneous assessment evidencing mental capacity to make such a momentous decision would in my view be necessary. No such assessment occurred in E's case and I think it at best doubtful that a through investigation at the time would have reached the conclusion that she had capacity."
(3) Was it in E's best interests to receive life-sustaining treatment in the form of forcible feeding with all necessary associated measures. The answer was YES and this is addressed from para. 71 onwards.
Making the decision as to the best interests of a person was not a mechanistic exercise but was an intuitive process with weighty factors on each side of the scales (para. 129). At para. 114 the judge summed up the factors involved in the "best interests" decision. On the facts of this case, the legal presumption in favour of saving life was not displaced. There was a possibility that the treatment now available (and for which funding was now available) would succeed. The judge seems to have been influenced by the commitment of the health authority to a treatment plan. In the final paragraph of his judgment, the judge indicated that the authorities were now honour-bound to see through the provision of resources in the short, medium and long term. "Had the authorities not made that commitment, I would not have reached the conclusion that I have."
Some of the observations of the judge:
It is interesting to note the judge's observations (para. 17) relating to how E had been "treated in the community" as a result of the failure of the residential placements and the unavailability of further funding. This led to a ?revolving door? series of emergency admissions for medical and psychiatric care, often after she was found in a collapsed state after drinking as much as a bottle of spirits a day. A person such as E, with anorexia of the most severe and intractable kind, is incapable of recovery without major medical intervention (para. 26).
The judge noted - (at para. 40) - that the case ought to have been brought to court much sooner since her condition has been seen by those treating her as raising an ethical predicament since at least 2009. An earlier application might have allowed E to participate directly in the proceedings if she so chose. He was also concerned that - "in a case with legal, moral and ethical dimensions, it is important for the court to ensure that it is informed of the actual practical possibilities and not to be drawn into theorising" - para. 41. (My emphasis).
Naturally, one hopes that E will make a recovery with the intervention now on offer. The financial cost will be high and the treatment lengthy extending, possibly, to a number of years. Annual costs of £200,000 to £300000 are referred to - (para. 93).
It seems likely that this case will be the subject of posts on other blogs and articles. I will link to any which I find or which are drawn to my attention.
Resources:
Human Rights Act 1998
Mental Capacity Act 2005
Airedale NHS Trust v Bland [1993] AC 789
Hercezegfalvy v Austria (1993) 15 EHRR 437
Ms B v A NHS Hospital Trust [2002] EWHC 429 (Fam) - Judgment of Dame Elizabeth Butler-Sloss (President of the Family Division) - note: Peter Jackson QC appeared for the Official Solicitor
Advance Decisions to refuse treatment - NHS Guide for Health and Social Care Professionals
Document referred to in the judgment - Royal College of Psychiatrists - MARSIPA - Management of Really Sick Patients with Anorexia Nervosa
Essex Autonomy project - Personal autonomy and Mental capacity
Treatment of Anorexia Nervosa against the patient's will: Ethical considerations - Tomas J Silber - George Washington University.
Treatment of Anorexia Nervosa against the patient's will: Ethical considerations - Tomas J Silber - George Washington University.
Other posts / commentaries:
CharonQC 18th June 2012 - "The right to sign our own 'death sentence', The right to die and to refuse medical treatment or intervention."
Update 19th June - Daniel Sokol - As hard as it gets: the case of anorexic E and the right to die - The Guardian 19th June
Update 19th June - Richard Mumford - Judge orders that anorexic woman can be force fed: analysis - UK Human Rights blog
- Ian Brady - Tribunal Hearing June 2013
It was in 1966 that Ian Brady and Myra Hindley were convicted at Chester Assizes* (Fenton Atkinson J and a jury) of the murders of children. Both were sentenced to life imprisonment. Hindley died in November 2002. Brady has been held...
- A Trilogy Of Important Family Law Cases
July has been a legally busy month with numerous court decisions and other events. August is usually a little quieter but we shall see! In this post I draw attention to three recent cases which illustrate the immensely difficult work undertaken...
- Article 2 Duty On Nhs Trust: .... Supreme Court Decision
Roses at Lyme ParkUpdates 14th and 15th February On 20th April 2005, Melanie Rabone (aged 24) committed suicide by hanging herself from a tree at Lyme Park, Disley, Stockport. At the time, Melanie was on "home leave" from hospital where she was...
- Liberty: Deprivation Or Restraint?
The Trinity Law term ran from 7th June to 29th July and produced some important decisions. The Michaelmas Law Term does not start until 3rd October so the senior courts will be relatively quiescent until then. This provides an opportunity...
- Court Of Protection .... Is For The Weak And Vulnerable Not The Rich And Famous
Over recent weeks, there has been massive coverage of the use of injunctions to protect the private lives of various "celebrities" - (who can afford to bring these cases to court). Then there has been the case in the European Court of Human Rights...