England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

		Civil Justice Centre 1 Bridge Street West Manchester
		23/1/2013

Mr Justice Peter Jackson:

1. This judgment follows a hearing in open court and is a public document. At a previous hearing, a reporting restriction order was made as being necessary to protect the privacy of the patient and of those who surround and care for her. In summary, the Applicant is to be referred to as "An NHS Trust", the Respondent as "AW" and the nursing home at which she is cared for as "the Nursing Home".
2. This application concerns AW, a 57-year-old woman who is in a permanent vegetative state. It is made by the NHS Trust responsible for her care, which seeks a declaration that it is lawful and in her best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, albeit that this will lead to AW's death. The application is supported by AW's family, by all the medical staff who look after her, by the evidence of the expert witnesses who have reported, and by the Official Solicitor on behalf of AW herself.
3. AW, who was born in 1955, is married. She and her husband have a son, a daughter, and two grandchildren. Her parents are no longer alive, but she has two brothers: one has provided a statement in these proceedings, the other being disabled as a result of a stroke.
4. AW was a very active person. She ran a catering business. She was a keen sportswoman, who used to play squash and one year she ran the London marathon. She enjoyed music and dance.
5. In 1992, she suffered a subarachnoid haemorrhage and, whilst this restricted some of her activities, she continued to be active, enjoying walking near her home. A large focus of her life was her family, and she looked after her granddaughter when her daughter returned to work.
6. On 13 July 2008, AW, then aged 53, suffered a spontaneous, severe intra-cerebral haemorrhage and was admitted to intensive care. Unfortunately she did not recover and has remained unconscious.
7. During the course of the summer, the family hoped that AW might be showing some slight signs of recovery, but on 24 September 2008 a consultant in rehabilitation medicine concluded that she was in a vegetative state.
8. On 5 February 2009, AW was transferred from hospital to her current residence, a specialist nursing home experienced in the management of patients with profound neurological disabilities and low awareness states. Despite the high standard of care that she has received there, she has remained in the same condition. She has suffered occasional infections and has had hospital procedures from time to time. She is unable to swallow and is fed by a nasogastric tube. She has a tracheotomy with intermittent nebulisation and constant oxygen concentration.
9. On 18 October 2011, a consultant neurologist provided a second opinion that confirmed the diagnosis of PVS.
10. Between July 2012 and September 2012 WHIM (Wessex Head Injury Matrix) assessments were undertaken. Ms C, occupational therapist, indicated that only reflexive responses were identified.
11. In August 2012, a SMART (Sensory Modality Assessment and Rehabilitation Technique) assessment was undertaken over a four-day period by Ms Liliana Teixeira, a Senior Occupational Therapist and Lecturer at the Royal Hospital for Neuro-Disability. No evidence of meaningful or purposive behaviour was found.
12. On 21 September 2012, a best interests meeting was held, and following this AW's family requested that the Applicant Trust bring proceedings for withdrawal of artificial nutrition and hydration.
13. AW's husband, married to her for 37 years, says that she was a very active, independent and dignified woman. He is adamant that she would not want to be kept alive in her current condition. He supports the Trust's application. AW's son and daughter both express this view, as does her brother GL.
14. The manager of the care home where AW has lived for the past four years believes that on the basis of her discussions with the care staff and the family it is in AW's best interests for care to be withdrawn.
15. The Official Solicitor's representative visited AW on 15 January 2013 and spoke to her husband and her son. The family remember AW saying that in relation to her mother, who died suddenly after a stroke, and in relation to a friend, who died after a short illness, that she thought it was preferable to die quickly as opposed to experiencing long-term illness and suffering.
16. The vegetative state has been described as an absence of awareness of one's self and one's environment, a sleep/wake cycle, no demonstration of purposeful movement, no experience of suffering and no evidence of comprehension. Behaviours are limited to reflexive activities indicating no cortical involvement.
17. The permanent vegetative state has been defined as a vegetative state persisting for more than six months as a result of non-traumatic brain damage, or six months as the result of traumatic brain damage.
18. The case of Tony Bland established that it is lawful to withdraw artificial nutrition and hydration from a patient in a permanent vegetative state because further treatment would be futile.
19. The greatest care is therefore rightly taken to ensure that there can be no doubt about a diagnosis of PVS. This has been done in AW's case and the Official Solicitor submits that the evidence is overwhelming. The diagnosis of PVS has been made by:

• AW's clinicians (Dr DS, Consultant in Neurological Rehabilitation Medicine, and Dr TM, consultant neurologist)

• The NHS Trust's expert Professor Derick Wade (Consultant in Neurological Rehabilitation)

• The Official Solicitor's expert Mr Derar Badwan (Consultant in Rehabilitation Medicine).

20. Having reviewed all the available material, Professor Wade and Dr Badwan conclude that AW has been in a vegetative state for over four years.
21. This unanimous professional diagnosis has been supported by the detailed WHIM and SMART assessments, and AW's family and carers do not themselves consider that she has any consciousness.
22. I therefore find that

(a) AW is in a permanent vegetative state;

(b) There will be no change or improvement in her condition;

(c) There is no treatment available which could confer any benefit and that accordingly her treatment regime is futile; and

(d) The suffering caused by withdrawal of artificial nutrition and hydration will be managed by appropriate use of pain relief in accordance with the plan that has been created for AW.

And I declare that

(1) AW lacks capacity to litigate in these proceedings or to make decisions about the medical treatment she should receive, including as to the withdrawal of artificial nutrition and hydration and other life-sustaining treatment;

(2) It is lawful and in AWs best interests for life-sustaining treatment in the form of artificial nutrition and hydration to be withdrawn; and

(3) It is in AW's best interests to receive such treatment and nursing care as may be appropriate to ensure that she retains the greatest dignity until her life ends.

And I order by agreement that the NHS Trust will pay half of the costs of the Official Solicitor, to be subject to detailed assessment if not agreed.

23. The last four and a half years have been very hard for AW's family, but their moving statements show that she is very much loved, and that she will always be remembered as the unique and dynamic person that she was before she became so seriously unwell.