Guy's and St Thomas' NHS Foundation Trust v Mrs VA (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 25 August 2023 |
| Neutral Citation | [2023] EWCOP 39 |
| Court | Court of Protection |
| Docket Number | Case No: 1410326T |
[2023] EWCOP 39
THE HONOURABLE Mr Justice Hayden
Case No: 1410326T
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Adam Fullwood (instructed by Hill Dickinson LLP) for the Applicant
Mr Neil Davy KC (instructed by the Official Solicitor) for the First Respondent
VK appearing as a Litigant in Person
Hearing dates: 24 th August 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published.
I am concerned in this application with Mrs VA, who is 78-years of age and currently a patient in the ICU at a hospital. Mrs VA was taken to a hospital on the 16 th February 2023, following a collapse at her home. She was discovered by the police and it was not clear how long she had been in that position. On the day following her admission, she suffered an acute drop in consciousness level with a Glasgow Coma Score of 3 i.e., the lowest: no eye-opening; verbal response or motor response. Because she was unable to manage her swallow, she was intubated and transferred to ICU. There, her condition improved and to such a degree that four days later, she was removed from ventilation and transferred, on the 24 th February 2023, to the High Dependency Unit (HDU).
Sadly, on 26 th February 2023, Mrs VA suffered several further cardiac arrests and was resuscitated and returned to the ventilator. Though she was successfully resuscitated, it took 90 minutes to achieve spontaneous circulation and accordingly, in that lengthy period, cerebral blood flow was impaired.
Mrs VA was weaned from sedative medication to undergo extensive investigations. Repeated EEGs, in late February and early March, demonstrated moderate injury to the brain but an MRI scan, conducted on 9 th March 2023, showed small infarcts and a significant hypoxic brain injury. All clinical imaging, neurophysical images and observations are consistent with ischaemic encephalopathy following cardiac arrest. On 6 th April, the Trust convened a ‘Best Interests’ meeting. Mrs VA's children, though invited, did not attend. A ‘Do not Attempt Cardiopulmonary Resuscitation’ (DNACPR order) and a Treatment Escalation Plan was put in place. On 5 th May 2023, Mrs VA was reviewed by the neurology team at the hospital who concluded that clinical signs and the features of hypoxic and ischaemic brain injury shown on the MRI scan, indicated that there was no real prospect of any neurological recovery. In view of this, a further ‘Best Interests’ meeting was arranged. Mrs VA's daughter (W) attended but she indicated that she had no authority to speak on behalf of the family.
It is convenient to set out the observations of Dr H, Consultant Neurologist, in his neurological reviews over the following period:
“The assessment is almost 10 weeks after the period of injury (cardiac arrest)
Spontaneous breathing
No response to voice but opens eyes briefly and inconsistently to loud clapping
Corneal reflexes present
Alternating downbeat nystagmus with left beat nystagmus in the primary position
VOR abnormal
Apparent blinking is probably part and synchronous with the nystagmus
To deep pain the only reaction is extension of the left toe and foot
Bilateral extensor plantars
16 June 2023 Neurology Review
Note remains off any sedating medications. Nurses report no significant change in condition.
On examination:
Eyes open briefly a time spontaneously, not consistently, not to voice or visual threat, pain.
Some flexion of lower limbs to painful stimulus, and also some brief spontaneous nonpurposeful flexion movements of lower limbs observed.
Triceps and knee reflexes present bilaterally Otherwise reflexes absent.
Pupils symmetrically small approximately 2mm, no clear reaction to light. Abnormal VOR Impression-remains in vegetative state
Addendum:
Confirmed with her there would be no merits in reimaging, as her neurological state appears unchanged with no meaningful progress and it would not add any further information beyond what we already have currently.
27 June 2023 EEG
The patient was off sedation. The patient was seen to spontaneously cry and blink during the recording.
The background activity was of very low amplitude and diffusely slow. Runs of low amplitude theta and delta rhythms were seen over the temporal regions, perhaps slightly more prominent over the left temporal region.
When external stimuli were applied, subtle brain reactivity was seen.
Opinion
The EEG features suggest a moderate diffuse reactive encephalopathic state. Clinical and neuroradiological correlation is advised.
4 July 2023 Assessment by [Dr H]
Has been no significant sedation for many weeks.
No response to voice, clapping or visual threat
Eyes closed
Sluggish pupillary response
No spontaneous eye movements
On VOR does not go far beyond the horizontal on leftwood gaze. Limited vertical gaze.
Corneal reflex present
Coughs and gags on suction
Breathes spontaneously
No limb response to painful stimulus in cranial nerve territory seen.
Suggestion of extensor tone in a flexed elbows
Biceps reflexes symmetrical and a little brisk, triceps just present.
No lower limb response to painful stimuli in cranial nerve territory but withdrawal response on plantar testing.
Knee-jerk present plantar responses extensor.”
At the conclusion of these reviews, Dr H was clear that the history, the neurological signs and all the tests and investigations undertaken, created a clear conclusion that this was a profound injury to the brain which had occurred in consequence of a predominately ischaemic insult. Mrs VA, due to her age, intermittent hypertension and diabetes had, according to the imaging, probably sustained a significant loss of cerebral substance prior to the index medical events. The predominant factor was the prolonged hypertensive ischaemic event which occurred on the 26 th February 2023. As Dr H emphasised, the medical records document five discrete episodes of cardiac arrest:
“It is clear that even between these, relatively brief, events she was profoundly hypotensive and required relatively high doses of adrenaline to maintain her blood pressure. The mechanism of the cardiac arrest remains uncertain but is likely to have been arrhythmic in origin. The severity of the brain injury in an older patient with limited cerebral is unquestionable.”
The repeated clinical assessments that have been taken with regularity, now over many months, reveal a complete absence of any signs of recovery of cerebral function. Dr H expressed the following conclusion:
“Brainstem function remains intact and her brainstem reflexes from eye movements at the top of the brainstem to breathing in the low medulla are present. There have been no features to suggest any meaningful cortical recovery and I do not think that any recovery of cognitive function is possible. MRI imaging shows extensive white-matter change which is directly attributable to the prolonged hypotension and the complete absence of cerebral perfusion that occurred during the cardiac arrests. The EEG findings mirror the severity of the clinically apparent encephalopathy.
She has been seen by at least 6 Consultant Neurologists who are unanimous in the view that, with the deepest regret, there is no possibility that this lady will make any significant improvement in her cognitive function and she will remain in her present state indefinitely.”
It is convenient to record here that the family do not contest the lack of any meaningful recovery, but they do not believe that Mrs VA's awareness is as profoundly compromised as the medical evidence indicates. Dr H made himself available to give evidence, at short notice, in order to answer the questions raised by the family. The family suggested that Mrs VA was aware of their presence and displayed physical responses such as moving her eyes and crying at appropriate times. I found Dr H to be measured, kind and entirely willing to engage with the family's enquiries. Mrs VA's level of consciousness has been referred to as “vegetative state”. Dr H, who has not appeared before me before, spontaneously volunteered that he did not like the term. I agree with him and have said so in previous judgments. It is a phrase that, to my mind, provokes inevitable distress and resentment. It is an uncomfortable term to apply to a human being. Mrs VA is at the lowest end of the spectrum of a profound disorder of consciousness. Nothing further requires to be said.
Dr H was clear that Mrs VA's eye movements, tears and grimacing were all manifestations of a reflexive response. However, he very properly recognised that an absolute answer to this is, and probably always will be, impossible. It cannot be tested, it requires the disproval of a negative. Dr H was prepared to say and without hesitation, that there may be some vestigial capacity to experience both distress and sensory pleasure which may endure after conscious awareness has been lost. This is important, not least because it validates the family's experience of their mother at the end of her life.
On 26 th June 2023, the Trust commenced these proceedings. They had been entirely unable to forge a meaningful working relationship with the family to help understand where Mrs VA's best interests lie. Having heard from the family, it is clear that they hold the Trust, in some way, responsible for the cardiac arrests that Mrs VA suffered, on 26 th February 2023, whilst in hospital. They have...
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