A serious medical case, how a case should be prepared prior to an application and how the court determines such applications.
The Trust sought declarations as follows:
Were the family able to take video recordings of P and could they rely on such recordings in court?
The court found that there was an absolute necessity for a structured assessment (SMART/ WHIM) to have been undertaken before an application is considered.
P had a long history of kidney difficulties having in the past sustained kidney failure which required treatment by way of dialysis. The issues as to his non-compliance with dialysis was not a determination to factor in by the judge in the court’s overall consideration of the case.
However, following a cardiac arrest, where there was a period of 25 minutes between arrest and spontaneous circulation being restored, P suffered hypoxic brain damage such that he has been wholly dependent on the intensive care unit for all aspects of his care. P’s family consistently maintained that P was in a minimally conscious state and that they had continued to witness purposeful responses from P.
The family contended that discontinuance of treatment would be against his personal as well as religious views and not in P’s best interests.
The Trust, by way of the views of the treating clinicians, considered P to be in a permanent vegetative state (PVS). Unfortunately relations between the Trust and the family became increasingly polarised. This led to the family recording video footage when they said P had responded to verbal communication. The family wished the court to see this evidence. This was opposed by the Trust who offered the services of the trusts medical photographer as they were concerned about the privacy and dignity of other patients.
As a result of the court seeing the recordings it was plain that a further proper assessment was necessary and essential and accordingly a specialist occupational therapist undertook a further assessment using the process known as SMART (an internationally respected assessment). Additionally a leading expert in neuro rehabilitation was instructed and the united opinion and evidence at that stage of the assessment was as the family contended -namely that P was in a minimally conscious state (MCS). Unfortunately the gulf between the family and the Trust widened further when the Trust, in response to the assessment, sought to apply to withdraw a further raft of other treatments. They furthermore failed to inform any of the parties or the court that the consultant neurologist responsible for P’s treatment had changed his mind and that in his view he considered P was in a minimally conscious state and he had emailed that view to the trust solicitor.
The court decided it was not in P’s best interest for renal replacement therapy (RRT) to be withdrawn and declared that it was lawful and necessary that it should be continued. In terms of the litigation the court commented at paragraph 10 “having regard to the evidence now available, if facts known today were known in January I anticipate that this application might never have been issued. It is surprising in a way that it is persisted with in the light of what seems to me the incontrovertible and strong evidence now available”.
The court weighed the positives and negatives of RRT applying the balance sheet approach, reaching the conclusion balance lay strongly in favour of preserving P's life through the continued provision of RRT. The court added a postscript at paragraph 46 of the judgment highlighting a cautious approach to be taken by the court in such cases, particularly where the diagnosis is unclear and there are issues as to whether P is in a minimally conscious state with real or uncertain prospects of recovery.
The court highlighted that the application had been issued without any SMART testing having been undertaken and that such testing has led to 2 adjournments of the case, leading to uncertainty, anxiety and pressure on all those involved. The court noted “these decisions are amongst the most difficult clinically and legally to take, it is of note that there was equivocation in relation to the diagnosis of VS even at an early stage, and within the treating team.” The court highlighted the earlier decision of Baker J in W v M (adult patient) minimally conscious state: withdrawing treatment  1 WLR 1653 where it was stated that standardised testing is always necessary before the application is made to the court:
“it is of the utmost importance that every step should be taken to diagnose the patient’s true condition before any application is made to the court. In future no application for an order authorising the withdrawal of ANH from a patient in a vegetative state or a minimally conscious state should be made unless a SMART assessment or similarly validated equivalent has been carried out to provide a diagnosis of the patient’s disorder of consciousness and in the case of the patient thereby diagnosed as being in the minimally conscious state a series of WHIM assessments have been carried out over time with a view to tracking the patient’s progress and recovery if any through the minimally conscious state”.
The court again highlighted the current guidance of the Royal College of Physicians: National Clinical Guidelines on prolonged disorders of consciousness, which states that diagnoses of VS or MCS should be based on validated structural assessment tools such as SMART or WHIM.
The application for the use of video recordings within court proceedings turned out to be crucial evidence for the court in determining whether P was in a vegetative state (VS) or a minimally conscious state (MCS). The court at paragraph 7 of the judgment said: “in fact those video recordings provided a watershed insight into a proper conclusion in this case. As I say, but for their persistence, and the consequent anxiety of the Official Solicitor I could have so easily concluded on inadequate evidence, as it transpired, a conclusion that would have led to P's demise“.
The case reiterates the court’s strong presumption in preserving the sanctity of life and the overarching principle should be borne in mind in every case with this sort of background. The law regards the preservation of life as a strong fundamental principle. It also highlights the need for advisors in these types of cases to keep under constant review expert opinion and also that of treating clinicians and for such opinion to be shared. To say it is unfortunate that there was such polarisation between the family and the Trust in such dreadful circumstances must be an understatement. Better communication and with a willingness on both sides to consider alternative views may well have resolved this matter without recourse to the court.
For practitioners this case is highly useful as although it highlights that each case will turn on its own facts, it does helpfully review the leading authorities together with the relevant parts of the Mental Capacity Code of Practice and also Royal College of Physicians Guidelines in respect of VS and hypoxic injury (paragraph 19 to 21 inclusive) and also in respect of the best interest tests under section 4 Mental Capacity Act 2005 in the context of these types of application (see Re M  1 WLR 1653 Baker J).
Newton J ends his judgment with these cautionary words (they should be adhered to as in future there may well be costs implications (normally no order – Rule 157 but the court can consider Rule 159 and make costs orders even on an indemnity basis)) at paragraph 49:
“Therefore in all cases where there is any question of doubt about diagnosis, in order to eliminate mistakes potential tragedies it is essential that those assessments are carried out in good time so that the diagnosis is clear before the court, then the court can conduct its own enquiry and balance”.
Read the full text of the judgment on Bailii
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Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available.
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