The Trust made an application in relation to the Patient, O, seeking an application that their staff might lawfully withdraw and withhold mechanical ventilation and, further, that they might lawfully withhold any escalation of treatment such as cardiopulmonary resuscitation, organ support and antibiotics. The application was made on the basis that such treatment was, in their evaluation, no longer in O's best interests.
Despite the compelling, entirely unanimous and substantial body of medical opinion that has now been gathered the court found that the family were unable to let O die.
The Courts must not pursue the principle of respect for life to the point where life has become empty of real content or to a degree where the principle eclipses or overwhelms other competing rights of the patient i.e. in this case simple respect for her dignity.
Paragraph 28 of the Mental Capacity Act Code of Practice which addresses life-sustaining treatment was considered.
O, 58, originates from Nigeria, but had worked in the UK in a position of responsibility for many years. Her daughter described her as a fighter. On 16th February 2015, O was found unresponsive at home. The ambulance crew were immediately able to put resuscitation in place at the scene and she was admitted to the Emergency Department and onto the Intensive Care Unit at the Kings College Hospital in London. A brain CT scan was undertaken and was reported as being compatible with severe hypoxic brain injury, (there has been deprivation of blood and oxygen to the brain). When sedation was discontinued, O failed to wake up. A PEG tube was inserted to facilitate her feeding as she was not able to swallow herself and, from March 2015 onwards, she was breathing spontaneously without ventilator support.
There was a second cardiac arrest on 11th February 2016. O became unconscious. On the arrival of the ambulance her breathing was shallow and irregular. She then became apnoeic and a systolic. CPR was started and she was bagged to get air into her lungs. It was, however, possible to restore the heart rhythm with a slow heart rate. There was a further CT scan which was consistent with previous established global hypoxic ischemic injury. There were widespread changes on both sides of the brain which suggested that there had been a significant acute hypoxic ischemic event. Dr Moran made a diagnosis of "very severe global cerebral cortical damage".
O was examined further, by a Dr Tom Best, a Consultant in Intensive Care. Dr Best concluded, as had Dr Moran, that there was overwhelming evidence of irreversible severe hypoxic brain injury. He considered that the injury was so extensive that the majority of her brain stem was also involved, although some small part of it was spared which accounted for the very occasional spontaneous breaths.
The treating clinicians had concluded that it was no longer in O's interests to continue her life by ventilation, artificially, in the way that was taking place. In response to the application by the Trust, the Official Solicitor was instructed and he sought a further expert - a Dr Peter Newman, Consultant Neurologist. He provided a report, which, largely, concurred with the views of the treating clinicians.
On 14th April 2016, there was a compelling consensus of very distinguished medical evidence concluding that the damage to O's brain was so profound that there could be no feeling that there was in reality no sentient life and no prospect of a recovery. Her situation following that second heart attack was markedly different to that following the first heart attack, the brain and brain stem having both been substantially damaged.
The family sought further medical opinion. Professor Udo Kischka, a Neurologist and Consultant in Neurological Rehabilitation currently at Kings Hospital, was able to prepare an expedited report and he came to the conclusion that the other doctors who had examined O were correct in their assessment. In his report, he stated:
"I agree with Dr Newman and Dr Best's conclusions that O's very severe damage to the cortex of the brain, the subcortical structures of the hemispheres of the brain and the brain stem, the source of life to the brain itself, are profound and irreversible. I also agree with Dr Newman that there is no possibility of significant improvement in cerebral function. There have been minimal recovery responses in recent weeks, which are all on a reflex level without signs of awareness or purpose of movement."
Professor Kischka considered the options, weighed up the information and all the arguments, including that of the family and came to the view that it would no longer be in O's best interests to keep her on ventilation.
Hayden J referred to his earlier judgment in Re N  EWCOP 76 which sets out the law.
The court found that medical evidence showed that independent life of the body and mind has now gone for O. The court found that O’s life had become a life without content. “The [family ] have my profound sympathy as well as my understanding”. The court granted the declaratory relief sought by the Trust.
The court referred in its judgment to In re J (Wardship: Medical Treatment) CA  Fam 33 at 41 where the court stated that:
"No one can dictate the treatment to be given to the child-neither courts, parents nor doctors. There are checks and balances. The doctors can recommend treatment A in preference to treatment B. They can also refuse to adopt treatment C on the grounds that it is medically contra-indicated or for some other reason is a treatment they could not conscientiously administer. The court or parents for their part can refuse to consent to treatment A or B but they cannot insist on treatment C. the inevitable and desirable result is that choice of treatment is in some measure a joint decision of the doctors and the court or parents."
And also to Lord Donaldson in In re J (a case concerning mechanical ventilation) in which he referred to the balancing exercise to be performed in assessing best interests. "As this court observed in In re B account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself." Balcombe LJ in In re J deprecated any all-embracing test of intolerability (mentioned in the earlier case of Re B) "since the circumstances of the cases are so infinitely various."
The court also recorded the relevant part of the Mental Capacity Act Code of Practice which addresses life-sustaining treatment at para 28 :
"5.31 all reasonable steps which are in the person's best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person's death. The decision maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person's death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.
5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person's best interests. All the factors in the best interests checklist should be considered, and in particular, the decision maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment.
5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person's death is foreseen. Doctors must apply the best interests checklist and use their professional skills to decide whether life-sustaining treatment is in the person's best interests. If the doctor's assessment is disputed, and there is no other way of resolving the dispute, ultimately the court of Protection may be asked to decide what is in the person's best interests."
As expected by an experienced family lawyer and now a High Court Judge, Hayden J’s compassion for the situation that the family faced and also that of the treating clinicians is palpable in the commendably compressed judgment in this very difficult situation.
It reminds us all of the relevant law and also that the Mental Capacity Code of Practice is a tool to be used and not ignored.
Read the full text of the jugdment on Bailii
Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available.
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