An Nhs Trust v L (by his Litigation Friend the Official Solicitor) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan |
| Judgment Date | 08 October 2012 |
| Neutral Citation | [2013] EWHC 4313 (Fam) |
| Court | Family Division |
| Date | 08 October 2012 |
| Docket Number | Case No: COP — 12189716 |
[2012] EWHC 4313 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Justice Moylan
Case No: COP — 12189716
Miss C. Watson (instructed by Weightmans) appeared on behalf of the Applicant.
Mr. V. Sachdeva (instructed by the Official Solicitor) appeared on behalf of the 1st Respondent.
Miss J. Richards QC and Ms Grange (instructed by Pannone, Manchester) appeared on behalf of the 2nd Respondent.
THE 3rd and 4th RESPONDENTS were not represented.
Before starting my judgment I need to draw attention to the existence of a Reporting Restriction Order, which was made by Ryder J on 14 August 2012. That order remains in force and restricts what information can be published about these proceedings, including this judgment. Before anyone publishes any information they should look at the terms of that order to ensure that their proposed publication complies with its terms.
By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called "Mr L" for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided.
The application is made under the Mental Capacity Act 2005 because it is agreed that Mr L lacks the capacity to make decisions as to his future treatment. As a result of a previous cardiac arrest, Mr L's neurological condition is such that he has no capacity to be involved at any level in the making of such decisions.
The parties to the proceedings are the Trust, represented by Ms Watson; Mrs L, represented by Ms Richards QC and Ms Grange; two of Mr L's children who are not separately represented, but who have effectively had their cases conveyed through Ms Richards and Ms Grange; and Mr L himself acting through the Official Solicitor, represented by Mr Sachdeva.
Simply expressed, the Trust contends that it is not in Mr L's best interests for the treatment I have described (in broad terms) to be undertaken in the event of a significant deterioration in his condition, including in the event of a cardio-respiratory arrest. The family's position can be summarised as being that all possible treatment should be provided in the event of such a deterioration. The Official Solicitor supports the making of the declarations sought by the Trust as being in Mr L's best interests.
For the purpose of these proceedings I have been provided with a great deal of evidence, both written and oral. This has included evidence from Mrs L; one of Mr L's sons who I will call "Mr F L"; clinicians responsible for treating Mr L at the Trust; clinicians from other Trusts or hospitals requested by the Trust to provide a second opinion; and from two medical experts, instructed specifically for the purpose of these proceedings, namely, Dr Bell, a Consultant in Intensive Care and Anaesthesia and Dr Newman, a Consultant Neurologist. Much of the medical evidence is stark in its nature. I appreciate that it will be hard for the family to hear but in order to explain my decision it is necessary for me to set this out in some detail.
The hearing of the application started before me on 20 August 2012. A significant part of that hearing was taken up with evidence addressing the issue of whether Mr L was in a vegetative state or a minimally conscious state. The family was, understandably, particularly concerned to ensure that the correct diagnosis was made, especially in circumstances where they considered, as they still do, that they are seeing more signs of awareness and responsiveness than that seen by the experts instructed in this case or the treating staff at the hospital.
Partly because of the volume of the evidence which the parties sought to adduce and partly because of evidential developments concerning the issue of the level of Mr L's awareness, the case had to be adjourned after several days of evidence. I made an interim declaration and gave a short judgment. The adjourned hearing commenced before me on 1 October. I heard further oral evidence and submissions. The hearing concluded on Wednesday. I was not then able to give my substantive judgment until today.
Chronology
Mr L is aged 55. He and his wife have been married for over 40 years. They have eight children and are clearly a very close family. As described in Mrs L's Affidavit, Mr L has suffered from a number of medical conditions for many years. These include, to quote from the medical evidence:
"Multiple interrelated pathologies, including complications of obesity in the form of Type 2 diabetes mellitus, hypertension, ischaemic heart disease, chronic obstructive pulmonary disease and obstructive sleep apnoea, with associated right heart failure."
On 7 March 2012 Mr L was admitted as an emergency to hospital — "unconscious and in extremis with respiratory failure". He had one or possibly more cardiac arrests. He was successfully resuscitated without any apparent neurological damage. He spent one month in the intensive care unit and was discharged from hospital on 5 May 2012. During his admission in hospital Mr L was also found to have a pituitary tumour. Other changes were noted on X-rays which resemble either TB or a malignancy, but the tests have been inconclusive.
On 8 July 2012 Mr L was again admitted to hospital with chest pain and vomiting. He was discharged on 11 July 2012. As described in the statement from Mr L's son, Mr L remained extremely unwell — he was vomiting profusely, was cold, clammy and had swollen feet and chest pains. He could not walk unaided, was very weak and gasping for air. The family called an ambulance and Mr L was readmitted to hospital in the evening on 11 July.
On 14 July Mr L suffered a further cardiac arrest. The severity of this arrest was significantly greater than his previous arrest or arrests. Although he was successfully resuscitated, this was only after a protracted period of hypoxia or hypotension or both. He required five cycles of resuscitation to restore spontaneous circulation. As a consequence Mr L sustained severe brain damage. This was described by Dr Bell during his oral evidence as a profound hypoxic injury, exaggerated by hypoglycaemia. This severe damage has occurred in the higher centres of the brain, which, to quote from the evidence, provide the ability to have a conscious existence.
Mr L was until recently a patient in the high dependency unit at the hospital. He has now moved to a stroke ward.
On 16 July 2012 a "Do Not Attempt Resuscitation" notice was put on Mr L's medical notes. This was done without any prior consultation with the family, in breach of the Trust's own policy, which provides that:
"If the patient does not have capacity, their relatives or friends must be consulted and may be able to help by indicating what the patient would decide, if able to do so."
During the course of oral evidence a consultant from the Trust apologised for this, accepting that the proper procedures had not been followed, and frankly accepting that what had happened was, "grossly wrong". He also apologised for the fact that no member of Mr L's family had been asked by any member of the treating staff to participate in any assessment of Mr L's level of awareness.
The DNAR notice was not removed until 17 July, and the family has made a formal complaint about this and other matters.
I have been invited by Ms Grange to address these failings in this judgment, in, as she put it, the wider public interest. She also invites me to deal with the view apparently expressed by some of the treating clinicians that the decision that had been made was purely a medical one. Other than record what I have just set out in this judgment, I do not propose to accept her invitation to comment further. I do not do so because in my view the Guidance provided by the General Medical Council and Joint Guidelines, to which I refer to later in this judgment, provide extensive and detailed assistance on these issues. It is unnecessary for me to provide further comment, save to make the obvious point that the Guidance and Guidelines need to be properly disseminated and hospital staff need to be aware of their Trust's own guidance and policies. I accept that the family feels very strongly about these issues and that they may well, at least in part, provide some explanation for the course this case has taken. However, as I have said, I do not consider that any further comment by me is necessary or indeed appropriate in the broader public interest.
Returning to the medical chronology, Mr L was seen by a consultant neurologist from another NHS Trust on 19 July. A CT scan of Mr L's brain and an EEG were preformed on 23 July. The same consultant neurologist saw Mr L again on 26 July. In his opinion the CT scan showed changes representative of significant hypoxic-ischaemic injury with loss of the grey matter/white matter boundaries. The EEG showed changes representative of severe bi-hemispheric cortical injury. The neurologist spoke with the family. He explained that Mr L had sustained a significant brain injury, but that because his brainstem functions were largely intact, this would explain why he opened his eyes spontaneously and why he was breathing for himself. To quote from the...
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