Strand, London, WC2A 2LL
B e f o r e :
| NHS Windsor and Maidenhead Clinical Commissioning Group
|- and -
|SP (by her Litigation Friend the Official Solicitor)
(Withdrawal of CANH)
Mr. James Beck (instructed by Official Solicitor) for the Respondent
Determined on Paper Application
Crown Copyright ©
Mr. Justice Williams :
i) SP had a cardiac arrest and it took over 25 minutes for cardiac circulation to be re-established. She was unconscious from the start and remained so whilst a patient at Wexham Park.
ii) She was admitted to Northwick Park on 21 January 2015. During her time there she showed no behaviours suggestive of any consciousness or awareness. She was assessed on the Wessex Head Injury matrix on at least 14 occasions as well as the Sensory Modality Assessment and Rehabilitation Technique and the Coma Recovery Scale – Revised. The overall conclusions of these assessments were that there were no behaviours indicative of consciousness and that any movement was automatic not indicative of awareness.
iii) Since her discharge to a care home there has been no evidence of conscious awareness.
iv) He concludes SP is in a permanent vegetative state arising from severe hypoxic brain damage. She is now unaware of herself or her environment. No further improvement will occur. No intervention will raise her level of consciousness.
v) No further investigations are needed.
vi) She has extremely limited responses, is totally dependant and inactive and unable to participate in society in any way.
i) SP is in a permanent vegetative state following a hypoxic brain injury.
ii) The diagnosis is based on evaluation carried out by professionals over a 20 month period.
iii) At this point over 2 years after her original injury it is highly improbable she would ever recover.
iv) Her life expectancy is 5-7 years. If CANH were withdrawn she would die within 2-3 weeks.
i) There is conclusive evidence of absence of the two basic attributes of consciousness; arousal and awareness. SP is in a PVS arising from non-traumatic acquired brain injury arising out of her cardiac arrest. The cause of her condition is known, all reversible causes can be excluded, she has been carefully assessed. The RCP Guidelines for a diagnosis of PVS are fulfilled.
ii) Her condition is permanent. She is highly unlikely to ever recover to a state of even minimal consciousness.
iii) Her treating physicians had carefully and thoroughly applied the RCP Guidelines and there was no need for further assessments.
iv) SP's life expectancy may be 12-15 years.
v) There was a consensus among SS's family, the nursing and medical teams, the supervising clinical professionals in neuro-rehabilitation and palliative care and the experts that further CANH was not in her best interests and was futile and of no benefit to her. Dr Hanrahan agrees with this.
Best Interests Consultation
The Inquiries conducted by the Official Solicitor
i) In M-v-A Hospital  EWCOP 19 Peter Jackson J as he then was concluded that the decision about the patient's best interests could lawfully have been taken by her treating doctors having fully consulted her family and having acted in accordance with the MCA and recognised medical standards and so without an application to the court. However he observed that such cases were intensely fact specific and that treating doctors should not hesitate to approach the Court of Protection in any case where it seems right to do so.
ii) Director of Legal Aid Casework and Others -v- Briggs  EWCA Civ 1169, where the Court of Appeal stated that if the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P's best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA.
iii) Re Y  EWHC 2866 (QB) where the court concluded that there is no rule of principle or binding authority for the proposition that there is a legal obligation that all cases concerning the withdrawal of CANH from a person who lacks capacity must be sanctioned by the court.
iv) The decision in Re Y has been appealed to the Supreme Court who have heard argument but have not delivered their judgment.
"6.18 Some treatment decisions are so serious that the court has to make them – unless the person has previously made a Lasting Power of Attorney appointing an attorney to make such healthcare decisions for them … or they have made a valid advance decision to refuse the proposed treatment … The Court of Protection must be asked to make decisions relating to the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from a patient in a permanent vegetative state (PVS) …"
"8.18 Prior to the Act coming into force, the courts decided that some decisions relating to the provision of medical treatment were so serious that in each case, an application should be made to the court for a declaration that the proposed action was lawful before that action was taken. Cases involving any of the following decisions should therefore be brought before a court… decisions about the proposed withholding or withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS)."
The Substantive Application: Legal Framework
'at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'
It does not matter whether the impairment or disturbance is permanent or temporary. The determination of whether a person lacks capacity is to be made on the balance of probabilities. Section 3 sets out various criteria by which the court should determine whether a person is unable to make a decision. It is clear that SP lacks capacity given her diagnosis and inability to communicate so it is not necessary to explore these criteria in further detail.
'An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.
(1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3)He must consider—(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b)if it appears likely that he will, when that is likely to be.
(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable—(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(7)He must take into account, if it is practicable and appropriate to consult them, the views of—(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—(a) are exercisable under a lasting power of attorney, or
(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11)"Relevant circumstances" are those—(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant.
(my added emphasis)
ii) Re A (A Child) 2016 EWCA 759.
iii) An NHS Trust v MB & Anor  EWHC 507 (Fam).
iv) Re G (TJ)  EWHC 3005 (COP).
Legal Principles on Best Interests and Withdrawal of Life Sustaining Treatment
' Hence the focus is on whether it is in the patient's best interests to give the treatment rather than whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course they have acted reasonably and without negligence) the clinical team will not be in breach of any duty toward the patient if they withhold or withdraw it.'
' The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be.'
In considering the balancing exercise to be conducted:
"'1. The decision must be objective; not what the judge might make for him or herself, for themselves or a child;2. Best interest considerations cannot be mathematically weighed and include all considerations, which include (non-exhaustively), medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations;3. There is considerable weight or a strong presumption for the prolongation of life but it is not absolute;4. … account must be taken of the pain and suffering and quality of life, and the pain and suffering involved in proposed treatment against a recognition that even very severely handicapped people find a quality of life rewarding.5. Cases are all fact specific."'
i) The medical evidence is clear that SP is in a permanent vegetative state with no prospect of improvement. She will never regain capacity and cannot participate in decision making.
ii) The medical benefits of CANH are limited to simply keeping her body alive. The person that was SP in so far as a person is their personality no longer exists and can never return. CANH cannot help SP to regain consciousness or to resume any part of the life she led. She derives no benefit from living save insofar as being alive in itself (albeit with no awareness of being alive) is a benefit.
iii) Palliative care will reduce to a minimum any experience that SP might have of discomfort or pain as a result of CANH being withdrawn.
iv) The evidence of her family and the nursing staff from their observations of SP is that there has been no improvement in her condition over the years and that her symptoms are consistent with her having no awareness of her surroundings. This is the experience of her closest family including her children; if she was likely to be aware of anyone it would be her children.
v) No one is motivated by a desire to bring about SP's death but rather that it is not in her best interests to live like this.
vi) SP had expressed the view to her son whilst watching a programme about a person in a PVS that she would rather die than stay in a bed for years in that condition. SP had expressed the view that if someone close to her was ill like her father had been she would turn off the life support and not leave them in that state. I accept that she had expressed a wish not to live in the sort of situation she is now in.
vii) SP's actions in life in particular in relation to her approach to her father's terminal illness support the contention that she would prefer the withdrawal of life-sustaining but futile treatment and a move to palliative care only. I accept that her beliefs and values are such that they would influence her to want to have CANH withdrawn,
viii) Her family and friends (those interested in her welfare) are unanimously of the view that having regard to her personality and how she was before the cardiac arrest that she would not want to live as she is now and that it is in her best interests for CANH to be withdrawn and palliative care implemented. The doctors and nursing staff involved in her care are of the view that this course is in her best interests.
ix) The contrast between the full life SP led before the cardiac arrest and her existence now could not be more divergent. For a woman who loved life and lived it to the fullest she would find her current situation intolerable. Not only for her own sake but I believe also to relieve the suffering that her family endure from seeing her in this condition she would want to adopt a course which would end her and their suffering. She would not want to be a burden and would want her family to be able to move on with their lives and remember her as she was. In this case that means ending CANH and entering a palliative care programme.
x) She would want before leaving this life to be satisfied that her minor children were properly provided for and that nothing further could be done in her name to provide for them and their future. I accept that the family believe what has been done would meet with her approval. I also am satisfied she would endorse those arrangements and accept that there was no more she could do.
xi) The withdrawal of CANH has been planned and will be implemented by the nursing team with input from a hospice nurse. Her family understand what it involves and the timescales. They would have preferred for it to occur in February.