PW v Chelsea And Westminster Hospital NHS Foundation Trust& Ors (Rev 1)

In a best-interests decision under the Mental Capacity Act 2005, the court must assess the individual’s welfare in its widest sense. Medical benefit, burdens, prognosis, dignity, wishes and feelings, beliefs and values, and the views of those caring for the person all matter. The sanctity of life is important but not absolute. Life-sustaining treatment may be withheld or withdrawn when it is futile, overly burdensome or offers no prospect of recovery, provided the decision-maker is not seeking to cause death.

In serious medical proceedings, the usual reporting position protects the identity of the incapacitated person and family. The court must balance privacy and dignity against open justice and freedom of expression. An appellate court should not disturb either assessment unless the judge erred in principle or reached a plainly wrong conclusion.

RW, aged 77, had end-stage dementia and lacked capacity to decide medical treatment. Parker J in the Court of Protection determined that it was not in his best interests to be discharged home with a nasogastric tube for clinically assisted nutrition and hydration. He was to receive palliative care and oral comfort feeding. The judge also continued a transparency order preventing identification of RW, his family and treating clinician.

PW, supported by RW’s sons, sought urgent permission to appeal. He argued that the judge had failed to give adequate weight to RW’s wishes and feelings, had overstated the risks and burdens of home nasogastric feeding, and should have permitted identification. The Court of Appeal considered the best-interests assessment, the practical availability of treatment, and the balance between privacy and freedom of expression.

1. Disposition. The court unanimously refused permission to appeal on all grounds and lifted the stay of Parker J’s order.
2. Best interests. The framework in section 4 of the Mental Capacity Act 2005 is universal. It requires an individualised assessment of welfare in its widest sense, including the medical and non-medical consequences of treatment. The sanctity of life is a strong but non-absolute principle. A decision-maker may conclude that life-sustaining treatment should be withheld or withdrawn where it is futile, overly burdensome or offers no prospect of recovery, provided the decision is not motivated by a desire to cause death. The judge was entitled to accept the professional evidence that continued nasogastric feeding was clinically inappropriate and unsafe, having regard to its burdens and risks and the absence of recoverable benefit.
3. Wishes and feelings. The judge properly considered RW’s wishes, feelings, beliefs and values and the views of his sons. The evidence established that RW wished to be at home and disliked hospital treatment, but did not reliably establish what he would have wanted about continued tube feeding in the circumstances that arose. It was therefore impermissible to speculate. The family’s sincere views did not require the court to authorise medically inappropriate treatment. The proposed argument that sanctity of life should prevail absolutely where a person was above a minimally conscious state was abandoned and was inconsistent with the universal statutory framework.
4. Practical availability. The court added that a treatment option must be realistically available before its best interests are assessed. The evidence should address whether a hospital or doctor would re-site the tube when required. This observation was not necessary to the outcome.
5. Reporting restrictions. The starting point under the Court of Protection rules for an attended serious medical hearing is a public hearing with anonymity for the person concerned and the family. The court must balance privacy, dignity and vulnerability under Article 8 against open justice and freedom of expression under Article 10. The judge’s evaluative assessment was not plainly wrong. There was a real risk that identification would lead to public intrusion and interfere with RW’s care. The order protecting RW and his sons was to continue during RW’s lifetime, while protection for the clinicians was to continue until further order, with liberty to apply.

1. Court of Appeal (Civil Division): Permission to appeal was refused on all grounds. The stay was lifted, and directions were given concerning the duration of the transparency order.
2. Court of Protection: Parker J determined on 13 April 2018 that continued clinically assisted nutrition and hydration through a nasogastric tube was not in RW’s best interests and refused permission to appeal. A transparency order protecting RW, his family and treating clinician was continued.