Briggs v Briggs & Ors  EWCOP 53 (20 December 2016) – read judgment
Apologies for starting the new year on such a sombre note, but there is a shaft of light in that this Court of Protection judgement is a clear indication that judges – or some of them – are prepared to favour an individual’s autonomy over the traditional emphasis on the sanctity of life above all else.
As Charles J points out, this case raises issues of life and death and so vitally important principles and strongly held views. The decision he had to make was whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs was in a minimally conscious state (MCS) as the result of serious and permanent brain damage he suffered as the victim of a traffic accident eighteen months ago. He was not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in the Tony Bland case did not apply to him (Airedale NHS Trust v Bland  AC 789). In that case, it will be remembered, their Lordships concluded that the continuation of life in such a state was futile. Problems arose with subsequent advancements in neurological diagnosis, where a less catastrophic condition known as MCS was established. In 2012 a court ruled that a patient in MCS could not be deemed to have made an advance directive regarding medical treatment even though during her lifetime she had made her position very clear that she would not want to continue living in such a reduced state (Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment)  1 WLR 1653). Her views did not, in their view, encapsulate the state of MCS. See my post on that decision here. Baker J’s refusal of the family’s application to allow treatment to be withdrawn came in for severe criticism in the British Medical Journal (see Richard Mumford’s post on that article). The author took Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. Charles J took a very different approach in this case.
Issues before the Court
Here the judge was being asked whether
a. Mr Briggs should be moved to a rehabilitation unit for further assessment and treatment, which would include CANH, with the possibility that his degree of consciousness would improve, or
b. Mr Briggs would move to a hospice where he would receive palliative care, his CANH treatment would not be continued and as a result he would die.
At the time of the hearing, Mr Briggs was clinically stable and not in need of invasive treatment and so the central issue was the assessment of the weight to be given to and so of the balance to be struck between giving effect to (a) the very strong presumption in favour of the preservation of life, and (b) the right to self-determination of a person who before he or she loses capacity has not made a valid advance decision (or a lasting power of attorney) applicable to the carrying out or continuance of the relevant treatment (here CANH)
Taking into account all the evidence as to Mr Brigg’s wishes before his accident, the judge concluded that
the weightiest and so determinative factor in determining what is in Mr Briggs’ best interests is what I am sure he would have wanted to do and would have concluded was in his best interests. And so, for him, his best interests are best served by giving effect to what he would have been able to dictate by exercising his right of self-determination rather than the very powerful counter arguments based on the preservation of his life.
Reasons behind the Court’s decision
Charles J had to consider Mr Brigg’s position under the Mental Capacity Act (the MCA), in particular those sections relating to advance decisions concerning one’s wishes regarding future life sustaining treatment in the event of a medical catastrophe. Under the Act, an advance decision is not applicable to the treatment in question if that treatment is not the treatment specified in the advance decision, or any circumstances specified in the advance decision are absent. Since Re M it has been said (following para 226 of that judgment) that the MCA provides stringent conditions that have to be complied with in respect of an advance decision relating to life-sustaining treatment. In Charles J’s opinion, that view was overstating what the Act provides. What the Act says is that the decision has to be accompanied by a statement that it is to apply even if life is at risk and has to be made in writing and witnessed. But it is what the Act does not say that was critically important in this case.
What is not provided is that the person making it has have any particular knowledge or have had any particular advice. In that context what is provided is less stringent than what the common law requires for the signing of a bank guarantee.
Mr Briggs had not made an advance decision nor a lasting power of attorney. Therefore of key importance to his case was section 4(6) of the MCA, which requires the court to his past and present wishes and feelings, and any written statements made by him when he had capacity, the beliefs and values that would be likely to influence his decision if he had capacity, as well as the interests of other people who he would have been likely to take into account. That means, for example, that many if not most patients in Mr Briggs’ position, when they had capacity, would have taken into account their relationships with others (e.g. spouse and children), how they think they their children should be parented and the impact on those closest to them of what they decide to do.
Critically, said the judge, the “fundamental and intensely personal competing principles” of the sanctity of life and of self-determination which an individual with capacity can lawfully resolve and determine by giving or refusing consent to available treatment regimes mean that the decision maker, and therefore a judge,
must be wary of giving weight to what he thinks is prudent or what he would want for himself or his family, or what he thinks most people would or should want
If the decision that that individual would have made, and so their wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life.
This effectively parts company with the Re M case which made the existence of applicable advance decisions so critical to the patient’s case.
In Mr Briggs’ case, the Official Solicitor, or his lawyers, rejected the warning given by Hayden J in Sheffield Teaching Hospitals NHS Foundation Trust v TH  EWCOP 4 that a holistic evaluation of the evidence as to the patient’s wishes should be taken. The OS, as he did through his lawyers in the case before Hayden J, sought to rely on the ways in which Mr Briggs’ mother and one of his brothers had expressed themselves as a basis for weakening the force of their evidence. Charles J reflected that it would indeed be surprising
if loving family members did not express themselves in terms that differed in some respects and arrived at their conclusions for reasons that differed in some respects and over different periods of time. Complete consistency of approach and expression would give rise to more concern. I express the hope that the Official Solicitor will in future not seek to test family evidence in such a pedantic and so unsympathetic and unhelpful a way.
The totality of the family evidence had convinced Charles J in the sense that he had no reasonable doubt that if Mr Briggs had heard the evidence and argument before the court, including the evidence about his best case scenario and the possible distress, pain and difficulties he and his family may have had to face if his CANH treatment were not continued he would have refused to consent to the continuation of his CANH treatment.
I add that he would have been supported in this decision by his family and they would have faced the tragic consequences of his accident together.
Mr Briggs’ experience of witnessing death and the consequences of serious accidents informed and probably explained the number of conversations, views and discussions reported in the evidence before the Court of Protection about death and injury. The one closest to home related to his mother-in-law and her refusal of PEG feeding and nutrition when she was terminally ill with cancer. According to his wife, Mr Briggs fully supported her and her mother in this decision and told her that he would never want a feeding tube. This provided
a clear indication that Mr Briggs did not consider it was sensible to prolong life at all costs and thought it was right that the suffering of his mother-in-law was not prolonged. Indeed his wife reports that he used to ask why there was not something legal that could be done to end her mother’s suffering.
His wife, incidentally, has now made an advance decision herself that she does not want a feeding tube. And she told the judge that as she knows that as she and her husband have a very similar stance on matters she felt with absolute confidence that he would be doing exactly for her as she was now doing for him by asking for life-sustaining treatment to be withdrawn if their roles were reversed.
Members of the family told me that in their view Mr Briggs would regard his present situation as horrible and one that he would not wish to continue. Included within the reasons given are that a life in which he did not have the ability to communicate with his wife and child is not one that he would be willing to have. In her second statement his wife says in her view even if Mr Briggs was peaceful, if he was experiencing anything at all, she can imagine Mr Briggs asking “why are you torturing me?”
I have concluded that as I am sure that if Mr Briggs had been sitting in my chair and heard all the evidence and argument he would, in exercise of his right of self-determination, not have consented to further CANH treatment that his best interests are best promoted by the court not giving that consent on his behalf.
This means that the court is doing on behalf of Mr Briggs what he would have wanted and done for himself in what he thought was his own best interests if he was able to do so.
One postscript worth mentioning is the matter of costs. Unusually, the proceedings were brought by Mr Briggs’ wife rather than the NHS Trust who, in the judge’s words, “sensibly and compassionately” discontinued the proceedings they had brought. As a result Mrs Briggs became eligible for non-means tested legal aid. This had the important result that she was able to instruct solicitors and counsel without bearing all or a part of the costs herself from savings. The judge observed
It is quite clear that without that representation it would have been almost impossible for Mrs Briggs to advance the arguments and evidence of Mr Briggs’ family. Even if she had been emotionally able to do that the Court would not have received the assistance it has through her representation and the hearing would have been much longer. So in this case the alarming result of the situation that arose before Mr Justice Baker in Re M (Adult Patient)(Minimally Conscious State: Withdrawal of Treatment)  1 WLR 1653 of public funding not being provided to the family did not arise.
One more postscript: the charity Compassion in Dying runs a free website giving guidance for anyone thinking of making advance decisions in their will: http://www.mydecisions.org.uk.
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