A Clinical Commissioning Group v AF & Others [2020] EWCOP 16

In this case, the court had to decide if it was in the Protected Party’s best interests to continue to receive Clinically Assisted Nutrition and Hydration (CANH).

The Protected Party (P) suffers from a grossly incapacitated mind as a result of a stroke on 5 May 2016. Up to 12 May 2016 P ate and drank voluntarily. However, on that day he started to refuse food and was saying that he wanted to die. He was however dysphagic and extremely confused. On 19 May 2016 the decision was made that he did not have capacity and that it was in his interests for him to be fed through a nasogastric tube. Attempts were made to insert the tube, but P resisted stating that he wished to die. P was recorded on several occasions saying that he wanted to die, but another time he also said that he wanted to live. P’s daughter argued that it was not in her father’s best interests to continue to receive CANH, and that it should be withdrawn. Before his stroke, P had indicated to his daughter that he would not want to be kept alive as a “body in a bed”, but he had not written down an advance decision under sections 24 and 25 of the Mental Capacity Act 2005.

The court concluded that CANH should continue. P’s present existence is obviously limited but it is clear that he derives pleasure from physical and emotional stimuli. Mr Justice Mostyn fully considered P’s past wishes, but noted that P did not make a relevant written statement prior to the stroke, and that his oral statements to his family could not be construed as being applicable to anything more than a descent to a vegetative or minimally conscious or equivalent state. They could not be construed as being applied to his present condition. Following the stroke the P’s statements were made at a time when he crossed the boundary into incapacity and could not be construed as a rational and considered wish for self-destruction.

The full judgement can be read here

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