Re S [2016] EWCOP 32

​S was found to be in a permanent vegetative state without any awareness of herself or the world around her.

This case came before Hayden J as a final hearing to determine what was in S’s best interests. The family were asking for a declaration that it was no longer in S’s best interests to continue to receive artificial nutrition and hydration, and that it was lawful and in her best interests for artificial nutrition and hydration to be withdrawn. After hearing from medical experts that S would be very unlikely to recover, Hayden J agreed to make the declarations sought by the family.

This decision builds upon the previous decisions by Hayden J in N v N [2015] EWCOP 706 and Re O (Withdrawal of Medical Treatment) [2016] EWCOP 24.

Background
S had a history of alcohol (and drug) abuse since her teenage years and such substances appeared to give S some respite from the demons that seemingly haunt her. Her mother emphasised the positive aspects of her life, which included being a mother of two children and enjoying an outgoing lifestyle comprising of events such as attending music festivals. It was outlined that, although she could be strong willed and independent, S has an extremely complex personality and is vulnerable despite not always displaying this.

On 21st August 2012, aged 38, S took glucoside which causes the blood glucose levels to drop. Doctors considered that she may have had some secondary epileptic seizure which contributed to a hypoxemia, a reduction in the level of blood oxygenation. S was found unconscious and submitted to the Furness General Hospital in a comatose state. She was treated and discharged to a nursing home on 29th October 2012 and has not shown any signs to suggest that she is aware of herself or her environment. 

The family is insistent that S is, in every real sense, no longer here. They asked Hayden J to make a declaration that it would be in S’s best interests to withdraw the medical treatment, in particular the provision of artificial nutrition and hydration, in order to protect her dignity and respect the person she had been.

A treating clinician concluded there was only a 1-2% chance that the medication would obscure the true nature of her consciousness. Since the initial assessment, 18 months had passed and the family, with whom the court agreed, were critical of the delay.

By 1st May 2016 medication has been reduced as far as possible and there was still no evidence of any awareness. It was concluded that S was in a permanent vegetative state and could be preserved artificially for up to nine years.

Decision 
Hayden J found at paragraph 16 of his judgment that, having considered what the family say about S’s wishes, he has: “no hesitation in concluding that she would profoundly have wished to terminate such a situation.”

Hayden J referred to his judgment in N v N [2015] EWCOP 706, where he found that consciousness can be an elusive concept and awareness “is not reducible to a test or clinical sign and will frequently contain what may be a significantly subjective element”.

The judge accepted the unanimous view of the medical experts and declared that S lacked capacity to litigate, make decisions about her own medical treatment and it was therefore no longer in her best interests to continue to receive artificial nutrition and hydration, and that it is lawful and in her best interests for it to be withdrawn with the provision of such palliative care as is considered appropriate to ensure that she suffers the least distress and retains the greatest dignity until such time as her life comes to an end.

Discussion
This judgment highlighted the following key issues:

• Avoidance of delay in medical treatment cases is an important imperative;
• Those who are beyond pain, understanding or without any true consciousness require vigilant protection of their rights and interests;
• It is important to consider and give appropriate weight to the family’s views who ultimately know the patient’s personality best;
• Assessment of awareness will inevitably include consideration of subjective elements.

​Read the full text of the judgment on Bailii