VA (Medical Treatment), Re

An appellate court may review a Court of Protection decision on serious medical treatment where there is an arguable concern about the comparison of treatment options or the assessment of the incapacitated person’s wishes and feelings. A prior order made by consent does not bind a later judge where the evidential case has materially changed. Clinical benefits and burdens remain central to the best-interests assessment. Clear evidence of the person’s wishes and feelings may outweigh a clinical evaluation, but such wishes are not determinative. Where evidence of wishes is insecure, the court may attach weight to values such as privacy and independence and prefer palliative care where invasive treatment offers no medical benefit and imposes physical burden. In welfare appeals, costs will usually be dealt with on a no-order basis except in exceptional circumstances.

VA suffered a profound and irreversible brain injury and remained in intensive care with an endotracheal tube. The Hospital Trust initially supported extubation and palliative care, but later agreed with VA’s family that a tracheostomy and PEG insertion should be undertaken. Morgan J made an order by consent on 5 July 2023. Following objections from VA’s daughter VK and renewed consideration of the family evidence, Hayden J heard the matter on 24 August and ordered extubation and palliative care, declaring that this was in VA’s best interests.

VK appealed, challenging the fairness of the process, the assessment of VA’s wishes and feelings, and the comparison of the treatment options. The central issue was whether Hayden J’s decision was wrong or unjust because of a procedural irregularity.

Disposition. Permission to appeal was granted because there were arguable concerns about the change from the earlier consent order, the comparative analysis of the treatment options and the assessment of VA’s wishes and feelings. The appeal was nevertheless dismissed.

1. The order made by Morgan J on 5 July had been superseded by Hayden J’s later order and had no legal force. In any event, the case presented to Hayden J was materially different because the apparent family consensus about VA’s wishes had become unclear. Hayden J was entitled to decide the issue on the totality of the evidence.
2. The family had received comprehensive information during the proceedings and had a fair opportunity to present their evidence. Complaints about events before the proceedings, and issues concerning the causes of VA’s illness, the Official Solicitor and deputyship, fell outside the appeal. There was no procedural irregularity or breach of human rights invalidating the decision.
3. The best-interests analysis was sufficient. The clinical evidence favoured extubation. Tracheostomy, deep suctioning and PEG insertion were invasive and burdensome and offered no prospect of neurological improvement. Clear evidence of VA’s wishes and feelings might have outweighed the clinical assessment, but such wishes would not have been determinative. The evidence did not securely establish a preference for tracheostomy. VA’s independence and privacy were important values, and extubation with palliative care offered the prospect of greater privacy and peace.
4. In an appeal concerning an incapacitated adult’s personal welfare, the general approach should ordinarily be that there is no order as to costs, save in exceptional circumstances. The Court made no order as to costs, save that the Trust should pay 50% of the Official Solicitor’s costs.

Any application for permission to appeal to the Supreme Court had to be made promptly. The extubation order was stayed until 4pm on 20 October 2023.

• Court of Appeal (Civil Division) — Permission to appeal was granted, but the appeal against Hayden J’s order was dismissed: [2023] EWCA Civ 1190.
• Court of Protection — Morgan J made an order by consent on 5 July 2023 authorising tracheostomy and PEG insertion. Following renewed proceedings, Hayden J made an order on 25 August 2023 authorising extubation and palliative care as being in VA’s best interests.