NHS Trust A v M. NHS Trust B v H
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT |
| Judgment Date | 25 October 2000 |
| Judgment citation (vLex) | [2000] EWHC J1025-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: FD00P07066 (Re:Mrs "M") |
| Date | 25 October 2000 |
[2000] EWHC J1025-1
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The President
Case Nos: FD00P07066 (Re:Mrs "M")
FD00P11143 (Re: Mrs "H")
Mr J. Grace QC and Mr C. Johnston (instructed by Messrs Hill Dickinson) appeared for both Applicants
Mr B. Emmerson QC appeared for the Official Solicitor
JUDGMENT APPROVED
THIS IS THE JUDGMENT OF THE PRESIDENT IN THIS CASE IN THE FORM IN WHICH IT WAS HANDED DOWN IN OPEN COURT AT THE ROYAL COURTS OF JUSTICE, STRAND, LONDON, WC2A 2LL ON WEDNESDAY 25 OCTOBER 2000 AT 10.15 AM. IT CONSISTS OF 14 PAGES (INCLUDING THIS PAGE) AND HAS BEEN SIGNED AND DATED BY THE JUDGE. THE JUDGE DIRECTS THAT NOTHING SHALL BE PUBLISHED WHICH IDENTIFIES ANY OF THE PARTIES IN THE CASE.
THE JUDGE ALSO HEREBY DIRECTS THAT THE JUDGMENT AS HANDED DOWN MAY BE TREATED AS AUTHENTIC AND THAT NO TRANSCRIPT NEED BE TAKEN
SIGNED: DATED:
Dame Elizabeth Butler-Sloss P:
I should first like to express my gratitude to counsel for their most helpful skeleton arguments and oral submissions which I have found to be of the greatest help in writing this judgment.
On the 5 th and 6 th October I heard applications by two hospital trusts (Trust A and Trust B) seeking similar declarations to enable hospitals managed by them to discontinue artificial nutrition and hydration provided to two patients, Mrs M and Mrs H. The applications were supported by the families of each patient and by the hospital staff. The Official Solicitor represented both patients in accordance with the Practice Note [1996] 2 FLR 375; 4 All E R 766. The Official Solicitor did not oppose the applications. Mr Wood, representing an unincorporated organisation called ALERT, sought to intervene to put forward grounds upon which it was asserted that I should refuse to grant the declarations. For reasons which I gave at the time I refused to allow ALERT to intervene. Since a decision in respect of Mrs H was urgent, I gave my decisions on the 6 th October; granted both declarations in the terms sought and reserved my reasons.
A The Facts
Mrs M's Case
Mrs M is 49 and married with three adult children. She and her husband went to live in a foreign country in 1984 where he had obtained employment. On the 10 th September 1997 Mrs M was admitted to hospital for gynaecological surgery. The facts are not entirely clear since the medical notes of that hospital are not available but it appears that she had a cardio-respiratory arrest while under general anaesthesia and suffered hypoxic brain injury. She was diagnosed as being in a chronic vegetative state by a consultant physician in the foreign country. She remained in hospital until January 1998. After a brief period at home she went into a nursing home. Her husband decided to return to England and he and his son managed to bring Mrs M back by air on a regular flight in October 1998. She was admitted to hospital in the area where they had previously lived and has remained there ever since under the care of Dr L. I have been provided with written evidence from her husband and a nursing representative from the hospital. The specialist medical evidence was given by
i. Dr L who is a consultant physician and retains the overall care of Mrs M, made the diagnosis of a vegetative state in October 1998.
ii. Dr S, who carries out regular clinical sessions for Trust A, examined Mrs M in October 1998. He examined her again on the 5 th October 1999 and found she was in a permanent vegetative state.
iii. Professor Jennett who is Professor Emeritus of neurosurgery at the University of Glasgow was asked by the Trust to examine Mrs M and did so on the 5 th May 1999.
iv. Professor Wade who is a consultant in neurological disability, was asked by the Official Solicitor to examine her and did so on the 26 th August 2000. He agreed that Mrs M was in a permanent vegetative state.
Professor Jennett gave oral evidence. He was satisfied that Mrs M was in a permanent vegetative state. She had suffered anoxic brain damage. She was being fed through a PEG tube. The prospects of any change were "vanishingly small" and she could live for many years. He agreed with the conclusions of the Royal College of Physicians in 1996 that in PVS cases that were not caused by head injury it was appropriate to wait six months after the diagnosis of permanent vegetative state. In the present case, Mrs M has probably been in a vegetative state since immediately after the event in September 1997. She has therefore been in this state for over three years. He confirmed that if artificial nutrition and hydration were withdrawn she would not suffer any pain in the brief period before she died.
Mrs H's Case
She is 36. She was previously married and has one son now aged ten. She and lived with her son. From her teens she suffered from severe episodes of epilepsy and has for many years been under the care of Dr C at the hospital run by Trust B. Despite her serious medical problems she had a lively and bubbly personality. Her medication had side effects and caused her episodes of pancreatitis. At Christmas 1998 she became engaged to be married and went on holiday with her future husband to the United States in 1999. While she was there she developed pancreatitis. After her return to England she had another attack of pancreatitis in October 1999 and was admitted to hospital. She was discharged but on the 16 th January 2000 she was readmitted and on the 18 th January she was found collapsed in an asystolic cardiac arrest. She suffered anoxic brain damage. She was moved to her present hospital and has continued under the care of Dr C.
I have been provided with written evidence from Mrs H's mother, her fiancé, two close friends of the family, her general practitioner, one of the nursing staff on her ward and the Director of Nursing and Hospital Services. The specialist medical evidence was given by
i. Dr C, who is a consultant neurologist, who also gave oral evidence,
ii. Dr CY, a consultant neurologist from the same hospital who examined Mrs H in March and in July 2000,
iii. Dr Venables, a consultant neurologist and Associate Postgraduate Dean, Faculty of Medicine, Sheffield University examined Mrs H on the 9 th August as an independent expert at the request of the Trust,
iv. Professor Jennett, invited by the Trust as an independent expert, examined Mrs H on the 28 th September,
v. Dr Young, a consultant neurologist, examined Mrs H, on behalf of the Official Solicitor, on the 2 nd October.
The opinion of the consultants was unanimous that Mrs H suffers from permanent vegetative state. Professor Jennett in his written report said that the chances of "even slight improvement are vanishingly small".
Dr C in his written and oral evidence explained that he has had Mrs H under his care since 198She has particular problems in accepting artificial nutrition and hydration. She was originally fed with a PEG tube. Feeding became difficult and she frequently vomited. Because of this a PEJ tube was reinserted in June. The tube has been subject to recurrent blockage. It became blocked three times since June. Twice it was unblocked but on the third occasion on the 23 rd September the medical team was unable to unblock it. Since the 23 rd September Mrs H has received no nutrition. She has however continued to receive the prescribed drugs and some degree of hydration which until early October was provided intravenously. That method became unsatisfactory and she was, at the time he gave evidence, receiving hydration sub-cutaneously. That method was also unsatisfactory and only provided about half the hydration that she needs.
There are alternative methods of providing artificial nutrition and adequate hydration. It is not just a question of replacing a tube. Each possible method would require some degree of invasive procedure. Each is unsatisfactory and presents serious risks to Mrs H such as septicaemia, risk of perforation or major abdominal surgery by performing a laparotomy. The hospital faces an acute dilemma. Hydration alone is equally unsatisfactory and would create a deterioration in her physical condition which would present considerable nursing problems, would be distressing for her family and would only postpone death for a period of weeks. None of the invasive procedures would appear to be in the best interests of the patient.
Professor Jennett in his written evidence and Dr Venables in oral evidence confirmed the considerable risks attendant upon any of the proposed procedures to try to reintroduce artificial nutrition with the probability that it might only survive for a month or two before the problem reoccurred. There was no long-lasting solution. She has probably been in a vegetative state since the 18 th January. It is therefore over nine months that she has remained in that state.
Unlike Mrs M who could live for many years in her present condition, it is clear that the attempts to stabilise Mrs H's condition present unacceptable risks for her and a decision in respect of Mrs H was urgent. Both Mrs M and Mrs H are being nursed with a high degree of skill in their respective hospitals. If the artificial nutrition and hydration were withdrawn neither would suffer pain or discomfort. They would continue to be nursed for the brief period before death ensued. In each hospital there is in place support for the families and for the nursing staff.
Permanent Vegetative State
In April 1996 the Royal College of Physicians defined the vegetative state as:
"A clinical condition of unawareness of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and eye opening which may simulate sleep...
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