NHS Trust v Mr Y (by his Litigation Friend, the Official Solicitor) and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 13 November 2017 |
| Neutral Citation | [2017] EWHC 2866 (QB) |
| Docket Number | Case No: HQ17C03980 |
| Court | Queen's Bench Division |
| Date | 13 November 2017 |
[2017] EWHC 2866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice O'Farrell
Case No: HQ17C03980
Mr V Sachdeva QC & Ms C Dobson (instructed by Hempsons) for the Claimant
Mr R Gordon QC & Ms F Paterson (instructed by the Official Solicitor) for Mr Y
Ms Butler-Cole (instructed by Bindmans) for Mrs Y
Hearing dates: 10 th November 2017
This is a claim for a declaration under CPR Part 8 that it is not mandatory to bring before the Court the withdrawal of Clinically Assisted Nutrition and Hydration ("CANH") from a patient who has a prolonged disorder of consciousness in circumstances where the clinical team and the patient's family are agreed that it is not in the patient's best interests that he continues to receive that treatment, and that no civil or criminal liability will result if CANH is withdrawn.
On 2 June 2017 Mr Y, a 52 year old man, suffered a cardiac arrest after a myocardial infarction as a result of coronary artery disease. It was not possible to resuscitate him for well over 10 minutes, resulting in severe cerebral hypoxia and causing extensive brain damage. It is common ground that Mr Y lacks capacity to make a decision as to his future treatment and care.
Two medical experts with extensive qualifications and experience in the field of neurological rehabilitation agree that Mr Y is in a very low level of responsiveness, he has no awareness of self or his environment, and it is highly improbable that he will re-emerge into consciousness.
Mr Y did not execute any advance decision to refuse treatment or a lasting power of attorney. Mr Y's wife, his children and wider family have considered carefully what Mr Y's wishes would be and are firmly of the view that he would not wish to be kept alive given the poor prognosis.
The clinical team and Mr Y's family are agreed that it would be in his best interests for CANH to be withdrawn, with the consequence that he would die within a period of 2 to 3 weeks.
The claim for a declaration that there is no mandatory requirement to seek consent to the withdrawal of CANH from the court is made by the claimant ("the Trust") and supported by the second defendant, Mr Y's wife ("Mrs Y"). The Trust's case is that there is no statutory or common law obligation to refer the decision to the court where, as here, there is no dispute between the clinicians and the family as to the incapacitated person's best interests.
The claim is opposed by the Official Solicitor, appointed to act on behalf of Mr Y and represent his best interests. The Official Solicitor accepts that there is no statutory obligation to bring an application for withdrawal of CANH before the court but submits that there is a common law obligation to do so, in order to ensure that Mr Y's Article 2 and Article 6 Convention rights are not infringed and to provide independent scrutiny of the decision.
Mr Y
Mr Y is a 52 year old man, who is married and has two adult children. Before his cardiac arrest, he worked as a financial analyst in an investment bank in London. He was a very active man. He worked hard in a stressful environment and for long hours but he had a healthy diet and regular health checks. He enjoyed running, skiing and regularly worked out at a gym. He travelled worldwide for work and leisure. He enjoyed eating out, loved music and attended many rock concerts.
Medical Assessment
Since his cardiac arrest on 2 June 2017, Mr Y has been in a prolonged disorder of consciousness ("PDOC"). On 19 July 2017 Mr Y was admitted to a regional hyper-acute rehabilitation unit under the control of the Trust so that his level of awareness could be assessed. During the period since his admission, Mr Y has been subject to a detailed clinical assessment, 22 assessments measured against the Wessex Head Injury Matrix ("WHIM") and 19 assessments measured against the Coma Recovery Scale ("CRS-R"). Mr Y's family have reported no evidence of interaction with, or recognition of, them.
The opinion of his treating consultant, Professor A, is set out in a report dated 29 September 2017. Although a formal diagnosis of permanent vegetative state ("PVS") has not yet been made because he has not been in PDOC for 6 months, Professor A's medical opinion is:
"Mr [Y] has, however, been in PDOC for several months following hypoxic brain injury this indicates very severe brain damage. He does not demonstrate any clear trajectory of improvement. Therefore, even if he were to regain consciousness, he will continue to have profound cognitive and physical disability, remaining dependent on others to care for him for the rest of his life."
Professor A's opinion has been confirmed by an independent, second opinion by Professor B, in a report dated 16 October 2017. Professor B saw and assessed Mr Y on 13 October 2017 at the rehabilitation unit, reviewed his medical notes and discussed Mr Y's condition with Mrs Y, their daughter (by telephone) and Mr Y's key worker. Professor B's medical opinion is:
"… despite prolonged observation in a variety of settings by a variety of people both informally, and using formal structured assessments, there has been no consistent or repeated evidence of any behaviours consistent with any awareness whatsoever. All the observations are consistent with and characteristic of those seen in people in the vegetative state, unaware of themselves and their environment…
I conclude that beyond a reasonable doubt he is currently and has been from the outset completely unaware of himself and his environment, and that he fulfils the generally accepted criteria for being in the vegetative state…
I further conclude that there are no plausible reversible causes for this condition or exacerbating this condition, and that no further investigations are needed either in relation to the underlying cause, or in relation to his level of awareness…
Consequently one can state that his level of current function is the best that he will achieve for the remainder of his life, and that there is no prospect that he will ever have any greater level of independence or ability to communicate and interact socially."
Having considered Professor B's report, Professor A provided a further report dated 30 October 2017:
"I would certainly agree with [Professor B] that [Mr Y] suffered a very severe diffuse hypoxic brain injury, and that he is in a very low level of responsiveness with no trajectory towards recovery. So at this stage (now approaching 5 months since injury) I would agree that it is highly improbable that he will re-emerge into consciousness."
Best interests consultation
Best interest meetings were held by Professor A with Mrs Y and the children on 21 July 2017, 10 August 2017 and 8 September 2017.
Mrs Y has written a letter, stating that she has consulted the children, Mr Y's brother and sister, and his parents. They are all agreed that Mr Y would not want to be kept alive in a vegetative state, or in a minimally conscious state, or with profound disabilities. He would hate to be helpless and dependent on other people for his daily needs. He would not want to live in a care home. This is confirmed in a letter from Mr Y's children.
Professor A and Professor B have concluded that it is not in Mr Y's interests to continue with CANH and recommend that this treatment should be withdrawn. The inevitable consequence of withdrawing CANH is that Mr Y will die.
Mr Y's wife and family are clear that they wish the treatment to stop and to let Mr Y die peacefully.
Proceedings
On 1 November 2017 these proceedings were issued, seeking declaratory relief.
On 3 November 2017, at a contested hearing attended by the Trust, the Official Solicitor and Mrs Y, Mr Justice Fraser ordered this expedited final hearing of the matter and made a reporting restriction order.
At the commencement of this hearing, Mr Gordon QC, for the Official Solicitor, made an application for the matter to be adjourned, so that it could be transferred to a specialist judge in the Court of Protection, with a realistic timetable to allow the Official Solicitor to investigate the case and reach a conclusion as to what he assesses to be in Mr Y's best interests. He submits that the claim raises a fundamental point of principle with potentially grave consequences for anyone who meets the criteria of PDOC and that a final hearing on the issues of law and policy should not be made without an adequate opportunity to make proper submissions.
The application for an adjournment and/or transfer to the Court of Protection was opposed by Mr Sachdeva QC on behalf of the Trust and Ms Butler-Cole on behalf of Mrs Y. Their position is that this question has already been considered by Mr Justice Fraser and a final, expedited hearing ordered. The claim has been made in this court so as to avoid the need for an application to be made in the Court of Protection, with the resulting delay in determination, and to obtain a binding ruling on the point of principle. The urgency arises from the fact that if the matter is not decided now, Mr Y will be transferred to a care home, which would be against his wishes as identified by his family. The Official Solicitor has had sufficient time to prepare for this hearing, particularly as the issue before the court is one that has recently been the subject of a judgment by the Court of Protection in another case, following detailed submissions by the Official Solicitor: Re M [2017] EWCOP 19.
I refused the application for an adjournment and/or transfer for the following reasons:
i) The matter has already been considered and determined as fit for expedition.
ii) The question...
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