Gloucestershire Clinical Commissioning Group v AB (by his litigation friend, the Official Solicitor) and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWCOP 49 |
| Date | 27 November 2014 |
| Court | Court of Protection |
| Docket Number | Case No: COP 11341264 |
[2014] EWCOP 49
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case No: COP 11341264
In the Matter of the Mental Capacity Act 2005
And in the Matter of the Senior Courts Act 2005
And in the Matter Of AB
Fiona Paterson (instructed by Bevan Brittan LLP) for the Applicant
Michael Horne (instructed by the Official Solicitor) for the First Respondent by his litigation friend the Official Solicitor
Vikram Sachdeva (instructed by Irwin Mitchell LLP) for the Second Respondent
Hearing date: 20 th November 2014
Introduction
On 16 th October 2005, a 55-year-old man, hereafter referred to as "AB", suffered a serious cardiac arrest while on holiday in France. Three days later he suffered a further collapse from which he never regained consciousness. For the last nine years he has been in hospital and subsequently in a residential home receiving artificial nutrition and hydration. It is not disputed that he lacks capacity to make any decisions, including as to his future care and treatment. His local health provider, now the Gloucestershire Clinical Commissioning Group ("the CCG") has applied for a declaration that it is in AB's best interests for artificial nutrition and hydration to be withdrawn. The respondents to the application are AB himself, represented by the Official Solicitor as his litigation friend, and his nearest relative, a cousin, who is the second respondent. The application was eventually listed before me for hearing in November 2014. Ultimately, all parties agreed that the declaration should be made and at the conclusion of the hearing, I indicated that I would make the declaration as sought by the CCG, together with ancillary and supplemental orders and directions. This judgment sets out the reasons for my decision.
Background
Prior to his collapse in 2005, AB had worked as a carpenter. He was unmarried with no children and apparently lived alone. His parents are deceased and the second respondent is his nearest relative. AB had an active life, enjoying fishing and, when he was younger, playing rugby. His cousin describes him as being very strong minded and spontaneous. His medical records show that he had been diagnosed with type II diabetes and hypertension in the course of 2005. The French hospital notes also suggest that he suffered from hypercholesterolaemia and obesity.
When in France on 16 th October 2005, AB experienced severe chest pain and was admitted to hospital where he underwent a coronary angiogram and a procedure for the insertion of a stent into his left circumflex artery. Early in the morning of 19 th October 2005, he had a cardiac arrest, apparently due to the failure of the stent. Normal cardiopulmonary resuscitation procedures were followed. The records show that he was in asystole with no spontaneous cardiac contraction for a period of 35 minutes. He was comatose with fixed dilated pupils and subjected to sedation. An EEG carried out on 23 rd October showed severe changes compatible with anoxic brain damage. The following day, he underwent a CT brain scan which showed evidence of diffuse cerebral oedema with focal left parietal cortical hypodense areas suggestive of local ischaemic cerebral infarction. Professor Wade, whose evidence I consider in more detail below, informed the court that the presence of such evidence on the CT scan at so early a stage after collapse indicated the seriousness of the brain damage.
On 4 th November 2005, AB was repatriated to the intensive care unit at his local hospital in England. He remained deeply unconscious with a Glasgow coma scale score of 3/15, the lowest possible. Further tests confirmed the presence of extensive brain damage. On 8 th November 2005 he underwent a tracheostomy and was discharged onto the neurology ward three days later. His coma scale score remained low. On 21 st December 2005, he underwent a procedure for the insertion of a PEG tube. In March 2006, he was started on sensory stimulation. On 22 nd August 2006, he was moved into a residential home, and three weeks later moved to his current home where he has remained ever since. From time to time he has been admitted to hospital for interventions in relation to the PEG tube and his tracheostomy. At all other times, he has remained in his residential home. All the evidence shows that the quality of care he has received there has been high.
Diagnosis
The evidence demonstrates conclusively that AB is in a vegetative state and in all probability he has been in that state since October 2005.
The Royal College of Physicians working party report entitled "Prolonged disorders of consciousness – national clinical guidelines", published in 2013, provides definitions of the prolonged disorders of consciousness – coma, vegetative state, and minimally conscious state. For the purposes of this judgment, it is only necessary to consider the latter two conditions. Vegetative state ("VS") is defined as "a state of wakefulness without awareness in which there is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles and a range of reflexive and spontaneous behaviours." VS is said to be "characterised by complete absence of behavioural evidence for self-or environmental awareness". Minimally conscious state ("MCS") is defined as "a state of severely altered consciousness in which minimal but clearly discernable behavioural evidence of self-or environmental awareness is demonstrated". MCS is said to be "characterised by inconsistent but reproducible responses above the level of spontaneous or reflexive behaviour, which indicates some degree of interaction with their surroundings".
The evidence consists primarily of the results of two formal assessments using an assessment tool known as the Sensory Modality Assessment and Rehabilitation Technique ("SMART") and the professional opinion of Professor Derick Wade, who is a Consultant in Neurological Rehabilitation at the Oxford Centre for Enablement and Professor of Neurological Rehabilitation in the University Department of Clinical Neurology at the John Radcliffe Hospital in Oxford. Professor Wade is recognised as a leading expert in the diagnosis assessment and management of adult patients with neurological disability arising from any cause, the organisation of and research into rehabilitation treatments and the diagnosis of the permanent vegetative state.
SMART is a standardised assessment for VS and MCS patients. The assessor's report in this case describes it as having been "designed to elicit behavioural responses to a comprehensive range of stimuli, enabling the accredited SMART assessor to identify the type of quality of patient's behaviours and sensory responses. The aim of SMART is to assess patients' level of sensory response, motor function, information processing and to identify evidence of awareness." SMART is recommended by the Royal College of Physicians working party as the tool of choice in the assessment of VS patients.
The assessment process is described in the report prepared in this case as follows:
"SMART consists of both a formal and informal component. The formal component requires assessment by the SMART accredited assessor over ten sessions within a 3-week period, with both the SMART behavioural observation assessment and SMART sensory assessment. This high frequency of assessments provides quantitative measure of change over time and identification and evidence of awareness and meaningful responses.
SMART behavioural observation assessment comprises of ten times ten-minute formal observations of patients' behaviours at rest. This assessment is followed by SMART sensory assessment, which consists of visual, auditory, tactile, olfactory and gustatory, motor function, communication function and wakefulness-arousal modalities. Each modality is scored on a five-point hierarchical scale and measures the quality of the response from SMART level 1 = no response, 2 = reflex, 3 = withdrawal, 4 = localising, 5 = differentiating response. A consistent meaningful response at SMART level 5 (on five or more consecutive sessions) in any one of the sensory, motor or communication modalities is indicative of evidence of awareness.
The informal component...
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CWM TAF University v F
...end of this judgment. The Legal Framework 7 I have been referred to and follow the decisions of Baker J in Gloucester CCG v AB & Others [2014] EWCOP 49 and WM [2011] EWHC 2443 Fam, which helpfully summarises the established principles: Capacity is not in issue between the parties. The unani......