The X Primary Care Trust v XB & anr [2012] EWHC 1390 (Fam)

WTLR Issue: November 2012 #124

THE X PRIMARY CARE TRUST

V

1. XB (by the Official Solicitor as litigation friend)

2. YB

Analysis

XB, who for years had been suffering from a progressive illness (motor neurone disease), required an invasive ventilation device in order to breathe and, being unable to talk, could only communicate latterly by the movement of his eyes. The question of life-sustaining treatment had been discussed on a number of occasions with his general practitioner and a draft advance decision to refuse treatment was prepared at his behest by a mental capacity coordinator. After considering the draft, in order to explain it to XB, a further simpler document was prepared using a template found by his wife, YB. In its final form, the advance decision expressed XB’s wish to have his ventilation device removed in the event that his disease progressed to a stage where he was unable to communicate his needs and lose the ability to have any control over decisions as to his care and management – it was read out to him and questions were asked in such a way as to ascertain whether he consented, which consent was communicated by the movement of his eyes. The document was signed on his behalf by YB and witnessed by both his general practitioner and the mental capacity coordinator on 2 November 2011. One of the carers was also present though another, who in the event was not present, later raised concerns as to the circumstances in which the advance decision was made. This led to the present application by the X Primary Care Trust. Declarations were sought as to XB’s current capacity to communicate a decision as to the continuation of life sustaining treatment, whether the advance decision was valid and applicable, and whether it was intended to be time limited.

Held (making the declarations sought):

  1. (1) There was no doubt on the evidence that by the time of the hearing XB had permanently lost the capacity to communicate decisions as to the continuation of life support and the conduct of the present litigation.
  2. (2) Although the terms of the advance decision were in places not entirely clear, it was more likely than not on the evidence that this did not undermine XB’s intention and that he had the necessary capacity at the relevant time and that it complied with all the necessary formalities to be an effective advance decision.
  3. (3) As to the question whether the advance decision was time limited, since a date six months after its making had been inserted at the end of the document where there was a box for a date of review and cesser of validity, this had not been discussed with or agreed to by XB. The dates had been inserted for the purpose of keeping the advance decision under review; not by way of limiting the time of its validity.

Obiter:

  1. (1) Whenever an issue was raised about an advance decision, the relevant health authority should investigate it as a matter of urgency so as to enable the relevant primary evidence to be gathered and, if required, an application made to the court;
  2. (2) There was no set form for advance decisions because the contents would inevitably vary depending on the maker’s wishes and circumstances, though guidance as to what should be included was set out in the Mental Capacity Code;
  3. (3) The desirability or otherwise of permitting the insertion of a ‘valid until’ date in those pro forma advance decisions available on the internet ought to be reviewed as it was clearly in the interests of the maker, his family and those responsible for the provision of treatment that there was clarity as to the terms of the advance decision.
JUDGMENT (as approved by the judge) MRS JUSTICE THEIS: Introduction [1] This matter concerns an application by the XPCT for declarations under s26(4) of the Mental Capacity Act 2005 (MCA 2005) as to the validity of an advance decision made by XB on 2 November 2011 that he wished, amongst other things, to have his …
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Counsel Details

Mr Parishil Patel (39 Essex Street, London WC2R 3AT, tel 020 7832 1111, e-mail clerks@essex.com) instructed by Mills and Reeve LLP (Francis House, 112 Hills Road, Cambridge CB2 1PH, tel 01223 364422, e-mail info@mills-reeves.com) appeared for the applicant. Mr Michael Mylonas QC and Mr Conrad Hallin (3 Serjeants’ Inn, London EC4Y 1BQ, tel 020 7427 5000, e-mail clerks@3serjeantsinn.com) instructed by the Official Solicitor to the Senior Courts (Official Solicitor & Public Trustee, 81 Chancery Lane, London WC2A 1DD, tel 020 7911 7127) appeared for the respondent. Mr Mark Mullins (The Outer Temple, 222 Strand, London WC2R 1BA, tel 020 7353 6381, e-mail clerks@outertemple.com) instructed by Irwin Mitchell, Solicitors (40 Holborn Viaduct, London EC1N 2PZ, tel 0870 1500 100, e-mail enquiries@irwinmitchell.com) appeared for the respondent.

Legislation Referenced

  • Mental Capacity Act 2005, ss24, 25 and 26