Court Of Protection Find Care Plan In The Protected Party’s Best Interest Despite Distress To Be Caused

The Court of Protection regularly makes decisions in respect of a person’s care plan when that person lacks the capacity to make the decision themselves.

Any decision made by the Court must be in the protected party’s best interests. The concept of best interests is fundamental in the Court of Protection and in order to establish what this could be, the Court will rely on evidence from experts and the family. “Best interests” – set out in Section 4 of the Mental Capacity Act 2005 is the criteria, details are available here.

Frequently, the Court of Protection will be faced with difficult decisions whereby there are conflicting views between the parties as to what is in the protected party’s best interests which cannot be resolved by agreement, and the Court will be called on to determine how to proceed. In making these difficult decisions the Court will consider all circumstances and will often look into the life of the protected party in order to establish the decision they would have made, should they have retained capacity.

Such evidence could be the protected party’s religious beliefs and their compliance with care plans and medical treatment. The protected party’s views, values, and character will be a relevant factor (depending on the issue in question) but not necessarily determinative.

The recent case of Imperial College Healthcare NHS Trust v Mrs C & Ors[2022] EWCOP 28  was one of those cases when determining what was in the Protected Party’s best interests caused some difficulty as the Protected Party required urgent medical treatment, and two options were available. Either option would be distressing for the Protected Party, with the latter of the two having a reduced chance of success.

Imperial College Healthcare NHS Trust v Mrs C & Ors [2022] EWCOP 28

Case background

The Protected Party in this case was 77 years old. She had suffered a cardiac arrest and had been on a ventilation system for almost six months. The ventilation system and treatment moving forward were expected to become more intrusive and would cause the Protected Party further suffering. The other option was to gradually remove the Protected Party’s reliance on the ventilation system so it was no longer needed but in doing so, would cause the Protected Party distress in struggling to breathe and potentially lead to an end-of-life care plan being required. The medical evidence suggested the chances of a successful removal from the ventilation system were less than 10%.

The Court noted either option would result in the further suffering of the Protected Party. The Court considered the Protected Party’s background and how she faced many challenges during her early years as a West Indian building a life in the United Kingdom. The family also provided evidence that the Protected Party had a focus on life and was passionate about certain causes and had been faithful throughout her life. The Protected Party also had a friend who had a tracheostomy in place and the Protected Party always said that would be the last thing she would want. The Court was clear that the Protected Party would have wanted to fight for her life as far as possible.

The decision

Based on the above, the Court held that it was in the Protected Party’s best interests to be weaned off the ventilation system as they were satisfied the Protected Party would be “up for the fight”. It was accepted this would cause a lot of suffering for the Protected Party whilst she began to breathe unaided after such a long period of ventilation. Given the poor prospects of success, it was expressly decided by the Court that the attempt should last no more than 14 days as any longer would be unethical.

Comment

This case is a good example of the Court looking into the Protected Party’s historic wishes and feelings in circumstances where there are conflicting opinions as to which of two difficult treatment options are in the Protected Party’s best interests. To establish this, the Court of Protection will consider the Protected Party’s history. This decision – featuring a clear focus on the Protected Party as an individual and the Protected Party’s specific views and beliefs – was tailored to the identity of the individual in question. It may be that a case featuring similar circumstances but a different Protected Party may have resulted in a different decision.