Guy’s & St Thomas’ NHS Foundation Trust v Mrs VA & Anor – Best Interest Decisions

In the recent case of Guys and St Thomas’ NHS Foundation Trust v Mrs VA & Anor, the Court of Protection considered a dispute between the family and the Trust, concerning what was in the best interests of the Protected Party.

Guy’s And St Thomas’ NHS Foundation Trust v Mrs VA & Anor [2023] EWCOP 39

Case background

The Protected Party was taken to hospital following a collapse at her home. Upon admission, the Protected Party suffered a drop in consciousness, was unable to swallow and was subsequently intubated. Despite beginning to recover, the Protected Party suffered several cardiac arrests. Following successful resuscitation, extensive investigations took place and it was discovered that the Protected Party had suffered a brain injury as a result of the cardiac arrest.

Following the discovery of the brain injury, a best interests meeting was organised by the Trust, and the family of the Protected Party was invited to attend. The family did not attend the meeting and the decision was made to put in place a ‘Do Not Attempt Cardiopulmonary Resuscitation’ (DNACPR Order) and a treatment escalation plan.

Assessments of the Protected Party took place over several months, the outcome of which revealed a complete absence of any signs of recovery. The Protected Party’s level of consciousness was referred to as a ‘vegetative state’. The family disputed the level of consciousness and argued that she was aware of when they were present, moved her eyes, and cried at times. They did not contest the lack of meaningful recovery.

The Trust issued proceedings as a result of the family and the Trust being unable to cooperate and make decisions that were in the best interests of the Protected Party. The Court of Protection had to consider what was in the best interests of the Protected Party and the Judge stated it was clear from hearing from the family that they held the Trust responsible in some way for the cardiac arrest.

A further best interest meeting was arranged by the Trust and the family was again invited. Only one of the Protected Party’s family members attended the meeting and the Trust understood that an agreement was reached, which meant the Protected Party would have a tracheostomy and PEG tube as part of a ceiling of care and she should not be re-admitted to ICU for ventilation or undergo any other invasive organ support.

The matter came before a different Judge following the best interest meeting and the Court of Protection was asked to make a final order based on the decision reached at the meeting.

Following the final order being made, the Protected Party’s youngest daughter raised objections and filed a COP9 application requesting that the order be set aside. A further hearing took place concerning the COP9 application and the daughter who attended the best interest meeting and previously reached an agreement with the Trust, made an application to be joined as a party, agreeing with the objections.

The family was allowed to file and serve statements setting out their position. The oldest daughter who had been added as a party, emailed the Court stating she was the family representative and that the Protected Party would not want her to be extubated and the DNACPR was not appropriate.

The Judge found that there had been a misunderstanding by the family in that they seemed to consider the nature and extent of their mother’s treatment to be within their authority but this was not the case. The Judge considered that the family’s evidence did not provide ‘secure ground’ for determining the Protected Party’s wishes.

The Judge found that the declaration sought by the Trust that extubating and providing palliative care which focused on giving the Protected Party the best quality of life, was in her best interests. The Official Solicitor supported the Trust’s application.

Comment

This demonstrates how the Court of Protection is called upon to make decisions in the best interests of the Protected Party when the family and the Trust cannot agree or maintain a relationship. The Mental Capacity Act 2005 gives the Court the power to make decisions about personal welfare and to make declarations and orders in respect of a person who lacks capacity. When making a best-interest decision, the wishes, feelings, beliefs, and values of the Protected Party are considered, but may not necessarily be the deciding factor in working out what is in their best interest.