A Clinical Commissioning Group v P (Withdrawal of CANH) [2019] EWCOP 18 (22 May 2019)

In April 2014 P took an overdose of heroin, as a result of which she suffered cardiorespiratory arrest and a severe hypoxic brain injury. An initial diagnosis of a vegetative state was made and, at a best interests meeting in June 2014, the prospects of improvement in P’s condition were considered to be poor.

Prior to the overdose, P had been involved in the decision to terminate a previous partner’s life support, and this had affected her and had caused her to comment to her family that she did not want to be left in the condition she was now in if anything happened to her, and P’s mother indicated this at one of the best interests meetings in June 2014.

P was discharged to a nursing home in August 2014 after her initial treatment at hospital and the CCG continued to fund P's care there. P’s eldest daughter and her mother were recalled by staff at the nursing home to have said that P would not want to be in the situation she was now in. The nursing home was committed to rehabilitation work with those who suffer from neurological impairment and a number of staff there had made it clear that they had a strong ‘pro-life’ ethos in the context of the proceedings.

P was initially fed by way of a PEG tube and then more recently by a nasogastric tube and she was completely immobile.

There was a period of around 18 months or so where P’s family had not observed her make any meaningful responses to stimuli which therefore suggested that P was now functioning at the vegetative, rather than the minimally conscious, level and, according to Dr H who regularly reviewed P, he had noted that P’s family were very clear in that P would not want to live like this and that they would wish to explore the process of applying to the Court for withdrawal of feeding.

However, the assessment of staff at the nursing home was more optimistic and, from descriptions from the staff working closely with P, Dr H noted that P had shown some responses which were not compatible with the diagnosis of vegetative state, therefore giving P a diagnosis of minimally conscious state. However, it was thought by Dr H that it was difficult to judge whether the responses were reflex actions, and P was vulnerable to fitting, chest infections and future health complications. Dr H considered that P would not improve cognitively. P’s eldest daughter also told Dr H, at a best interests meeting in October 2017, by reference to her former partner, that P had told her that "… nobody should be left to live like that." P’s treating clinicians took a neutral stance.

The CCG brought the application as all parties to the proceedings were all in agreement that P lacked capacity and that CANH should be withdrawn, but the staff caring for P at the nursing home had expressed contrary views and P’s treating clinicians had taken a neutral position. Therefore, the Court was asked to consider whether P lacked the capacity to make decisions regarding CANH and the Court concluded this, whether the Court should consent on P's behalf to the withdrawal of that treatment, a step that would result in her death.

Mr. Justice MacDonald granted the application after having given anxious consideration to the matter. He was satisfied that it was in P's best interests to consent on her behalf to the withdrawal of that treatment, a step that he acknowledged would result in her death. He was also satisfied that, before the overdose, on the balance of probabilities, P had expressed a clear and firmly held view that she would not want to be kept alive in circumstances in which she now found herself.

The full judgment can be read here.

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