An NHS Trust v AF & Anor [2020] EWCOP 55

AF was an 80-year-old man who suffered a severe stroke on 5 May 2016.  He had a PEG tube inserted which was used to give him Clinically Assisted Nutrition and Hydration ("CANH") and on 27 March 2020 Mostyn J held that AF lacked capacity to decide whether to continue to receive CANH via his PEG, and found that it was in AF's best interests for him to do so.

The PEG tube had fallen out and the Applicant NHS Trust was seeking a declaration that it was in AF's best interests to re-insert the PEG tube.

​The Official Solicitor supported the application but AF’s daughter opposed it.  She said that it was not in his best interests to have the PEG re-inserted or to continue to have CANH nor for AF to receive any active treatment, including antibiotics, or even 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 he briefly was overnight on 28th and 29th October 2020.

The PEG tube had fallen out on 9th October 2020.  AF was taken to A&E and 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 did so, but with no gastrostomy in place he was not receiving sufficient nutrition to sustain life.

By order of the Mr Justice Williams 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 would typically last for about three months before having to be replaced compared to the PEG which would last two to four years and the PEG could also be used both to continue CANH and the administration of medications that AF needed.

AF was admitted to hospital again late on 28 October when very unwell with pneumonia. He was administered antibiotics and monitored and noted to be responding well to treatment.

The court agreed with the Trust and OS following hearing evidence from Dr B, a Consultant Gastroenterologist, that the active treatment and proposed reinsertion of the PEG tube would not constitute aggressive treatment, it would interfere only very modestly with AF’s bodily integrity, it carried an extremely low risk of complications and it was highly likely to succeed in returning him to the condition he was in until 9 October 2020.   AF showed no indication of wishing to die and as Mostyn J had previously found, any past views he expressed about not wishing to be a "body in a bed" did not apply to his current condition which was of a man who, notwithstanding his grossly restricted existence, could take pleasure and stimulation from activities, culture, and human interaction.

The full judgement can be read here

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