A Clinical Commissioning Group v AF  EWCOP 16
This article originally appeared in Issue 5 (May 2020).
Following a hearing that took place via Skype due to the COVID-19 medical emergency, the court decided it was not in the best interests of a stroke patient to have his Clinically Assisted Nutrition and Hydration (“CANH”) withdrawn.
“AF” was an elderly man who suffered a severe stroke May 2016, which caused him to lose capacity for the purposes of the Mental Capacity Act 2005 (“MCA 2005”). A decision was taken to commence the provision of nutrition through via PEG. In this case the court was called upon to consider whether it was in his best interests for that to continue. If it was withdrawn, AF was likely to die in a short period of time. That outcome was supported by AF’s daughter – although she did not want her father to die, she fought passionately for what she considered to be his right to die.
The judgment provides another useful example of the way the court will consider the wishes of the protected party and those involved in their care when assessing best interests, pursuant to section 4(6) and 4(7). Section 4(6) confirms that the court must consider not just the actual current wishes of the protected party (so far as ascertainable), but also what their wishes were prior to their incapacity, and what their wishes would be likely to be now if they had capacity.
Mostyn J noted that AF’s autonomy was important, and the wishes of the past capacitous AF were to be given weight as to what was to happen with the present incapacitous AF. However, of equal importance was the preservation of life, and the principle that all life had intrinsic value.
An important principle that was eloquently articulated in the case is the idea that assessing the actual wishes and feelings of an incapacitated person had to done cautiously, because it is difficult to know the extent to which they have an appreciation of their plight. As Mostyn J explained at :
“A very important consideration when judging AF’s present quality of life is to keep at the forefront of one’s thinking that it would be fallacious to seek to judge the processes of his mind by the standards of a capacitous mind. All the expert witnesses agreed with me that the workings of a grossly incapacitated mind is a largely undiscovered country. It would be a grave mistake to assume that AF repines and that he makes relativistic judgments about the plight in which he finds himself. As Dr G rightly stated: ‘it is very difficult to know his subjective views since the stroke.’ What is known is that he derives simple physical and emotional pleasures from his quotidian existence.”
There was clear evidence before the court that, prior to his stroke, AF was very keen on maintaining his dignity and not being a “body in a bed”. However, he did not record any advance decisions as to the sort of treatment he would wish to refuse in circumstances like the present, under section 24 of the MCA 2005. After the stroke, he expressed a wish to die on multiple occasions, but as a matter of fact those expressions came after he had lost capacity.
The judge gave weight to the fact that AF had meaningful functionality in various respects (i.e. he was not in a vegetative state) and that there was evidence that he was able to take pleasure from life e.g. visits from animals and children, and musicians. He also felt that AF’s past expression of views could not be taken as clearly applying to his current situation. He concluded at :
“I have reached the very clear conclusion that it would be categorically contrary to AF’s interests for him to be set on the path that will lead to his inevitable death from starvation. This may be a diminished life, but it is a life nonetheless which has, as I have said, intrinsic quality and from which AF derives pleasure and satisfaction.”