PC, Re

In decisions about withdrawing clinically assisted nutrition and hydration from a person in permanent prolonged disorder of consciousness, the 2020 PDOC Guidance is an important benchmark but is not statutory or binding. A further full multidisciplinary assessment is not automatically required after diagnosis. The question is whether further evidence is necessary to resolve the proceedings, and a fair case-management decision may refuse an adjournment where no real prospect of material assistance is shown. An evolving expert view about possible pain does not require an adjournment if the diagnosis and level of awareness remain unchanged. Under the Mental Capacity Act 2005, sanctity of life is fundamental but not absolute. There is no categorical rule based on a low burden of care or absence of expressed wishes. Best interests must be assessed on all the facts.

PC suffered a severe hypoxic-ischaemic brain injury and remained in permanent prolonged disorder of consciousness at the minimally conscious state minus level. The Court of Protection, on an application by the Integrated Care Board, made declarations under the Mental Capacity Act 2005 that withdrawal of clinically assisted nutrition and hydration was lawful and in PC’s best interests, and that palliative care should be provided. The decision is reported as [2024] EWCOP 31 (T3).

PC’s mother, MC, sought permission to appeal. The grounds concerned refusal to adjourn for further neurological evidence, the assessment of pleasure, covert consciousness, and whether withdrawal could be ordered where the burden of care was said to be low and PC had expressed no wishes against treatment. The central issues were whether the judge’s case-management decision was unfair and whether the best-interests assessment was legally flawed.

1. Disposition. The Court of Appeal unanimously refused permission to appeal on all four grounds. The declarations and order of Mr Justice Cusworth therefore remained in force.
2. Assessment and adjournment. The PDOC Guidance was advice in a rapidly developing clinical field. It was not statutory or binding, although it was an important benchmark. The initial multidisciplinary assessment, subsequent structured reviews and continuing clinical observations provided an adequate evidential foundation. Under rule 15.3(1) of the Court of Protection Rules 2017, expert evidence had to be limited to evidence necessary to resolve the proceedings. MC had identified no proposed expert, draft instructions, issues or questions, and had not shown how further evidence could materially assist. Applying the fairness touchstone identified in Re P (A Child) (Fair Hearing) [2023] EWCA Civ 215, refusal of an adjournment was justified.
3. Pain and consciousness. Professor Wade’s view about whether PC might experience pain had evolved, but his evidence about her diagnosis, level of awareness and the need for further assessment had not changed. The evidence did not suggest that PC was functioning at a higher level. Further assessment could not resolve the inherently uncertain question of subjective pain experience. The judge had accepted the independent evidence about the absence of pleasure and had not conducted an impermissible personal assessment. The covert-consciousness argument disclosed no clinical uncertainty requiring further investigation.
4. Best interests. The approach in Aintree Hospital NHS Trust v James [2013] UKSC 67 remained the governing framework. Sanctity of life was of fundamental importance but was not absolute. There was no general rule that a low burden of care or the absence of expressed wishes prevented withdrawal of life-sustaining treatment. The court had to assess the individual case, weighing the preservation of life, PC’s wishes and feelings, the burdens of her condition and treatment, and the evidence about her quality of life. The judge was entitled to find that PC’s permanent condition, absence of prospect of improvement, pain and distress behaviours, and lack of evidence of pleasure meant that the benefits of continuing CANH were outweighed by its burdens.
5. Final order. The order under section 16(2) of the Mental Capacity Act 2005 that CANH should be discontinued and palliative care provided in accordance with the Palliative Care Plan stood.

• Court of Appeal (Civil Division) — Rolled-up permission and appeal hearing. Permission to appeal was refused on all four grounds.
• Court of Protection sitting in the High Court — Mr Justice Cusworth made the order dated 23 May 2024, reported as [2024] EWCOP 31 (T3), declaring withdrawal of CANH lawful and in PC’s best interests and approving palliative care.