NHS Trust v Ms D and Ors
| Jurisdiction | England & Wales |
| Judgment Date | 10 November 2005 |
| Neutral Citation | [2005] EWHC 2439 (Fam) |
| Docket Number | Case No: FD05P01872 |
| Court | Family Division |
| Date | 10 November 2005 |
[2005] EWHC 2439 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Coleridge
Case No: FD05P01872
Mr H Lloyd (instructed by Hill Dickinson) for the The NHS Trust
Miss C Harry Thomas instructed by and for the Official Solicitor
Miss A Street (instructed by Edwards Abrams Doherty) for Mr and Mrs D
Hearing dates: 1 st & 2 nd November 2005
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.
………………………..
This judgment is being handed down in open court on Thursday 10 th November at 2pm in Court 33. It consists of 15 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr Justice Coleridge:
Although it is clear that the First Defendant's anonymity has been compromised by media exposure I propose to continue to refer to everyone involved in this case (other than the experts instructed for the purpose of this application) by initials to protect them as far as possible from further unnecessary publicity.
Eileen D (Ms D) is a woman of thirty-two. She lies critically ill in the W Centre for Neurology and Neuro-surgery in the North of England. She suffers from the most horrible of genetic neurological illnesses. It is a terminal condition known as mitochondrial cytopathy. In her case also it has attacked her brain and has caused her to have continuous epileptic seizures without recovery in between. By about four months ago her condition had stabilised but deteriorated to the extent that all her doctors and other medical experts said that she was in a vegetative state and probably had no awareness of any kind. That remains the situation today. They say there is no prospect of improvement or recovery. Accordingly they say that in their opinion it is not in Ms D's best interests to try and prolong her life if, for example, either her breathing fails or she suffers cardiac arrest or contracts a potentially life threatening infection which would normally be treated by antibiotics. The NHS Trust ask the court to declare that it is not in Ms D's interests to take these, and other invasive steps given her current condition.
Ms D's parents, seven of her other relatives and her partner disagree. They have visited and continue to visit Eileen in hospital. They say that Ms D does have some awareness; on occasions she recognizes them and communicates with them by blinking or squeezing of her hand or similar sign. They say she is a fighter and that miracles do happen. Accordingly they oppose the doctors doing or declining to do anything which might not prolong her life for as long as possible. Every possible step and intervention should be taken they say.
The doctors' response to the family is that, whilst not doubting that the family have witnessed the movements which they describe, these are reflex actions not true signs of awareness and that to intervene beyond providing the best possible nursing and palliative care is to do no more than prolong the dying process for Ms D, for no discernable purpose and for probably no more than an extra six to twelve months. The doctors assert that Ms D will die in any event within about twelve months. The doctors further assert that if artificial ventilation were to be initiated the situation would soon be reached where a decision had to be taken to discontinue it. That would be a decision which was even more difficult to contemplate than the one which now faces the Court, the effect of discontinuance of ventilation being awful both for the patient, the family and the medical staff.
The simply appalling fact about this family is that they have been here before. Ms D's brother, M, died at the age of seventeen from the self same genetic condition a little over two years ago. Just to make matters even worse a sister also died prematurely in a road accident. So this is an especially desperate situation which faces this family.
In circumstances where it is accepted by all that Ms D herself lacks capacity to make any decision for herself, the Court has to decide the other issues which have arisen between the doctors and the relatives.
The Declaration Sought
The Claimant Trust seeks a declaration in the following terms:
" IT IS DECLARED THAT:
The First Defendant lacks capacity to make decisions regarding her future medical treatment.
It is in Ms D's best interests not to receive:
(a) resuscitation in the form of
(i) external cardiac massage;
(ii) bag and mask ventilation
(iii) bolus dose of inotrope including for example adrenaline;
(iv) electrical cardioversion;
(v) intravenous fluid boluses.
(b) mechanical ventilation and CPAP
(c) any procedure requiring general anaesthetic
(d) any procedure requiring central venous access.
And it is further declared that
3. It shall be lawful as being in Ms D's best interests for the claimant or the responsible attending medical practitioners nurses and healthcare staff generally to furnish such treatment and nursing care as may be appropriate to ensure that Ms D suffers the least distress, discomfort and invasion of her autonomy as is consistent with giving the appropriate treatment and that she retains the greatest dignity.
And it is ordered that
4. In the event of a material change in the existing circumstances occurring each party shall have liberty to apply for such further of other declaration or order as may be just "
In an earlier draft declaration the Claimants sought a specific declaration, at that time at sub-section 2(e), which included antibiotic therapy. The application proceeded on that basis until final submission. However following submission from the Official Solicitor that he was unhappy about the inclusion of such a declaration both the Claimant and the Official Solicitor would now prefer that this aspect of Ms D's future treatment be left to the ultimate discretion of the treating doctors on the basis that they should decline to provide antibiotic therapy if they consider that such a course would not be in Ms D's best interests at the time it was required.
The application for the declaration in the amended form is now supported by the Official Solicitor on behalf of Ms D he having heard all the evidence and other arguments. The application is vigorously opposed by the rest of the family.
The Hearing and the Evidence
I heard this application over two days and in open court. The evidence was both written and oral; expert and lay. So far as the expert medical evidence was concerned I have had statements from Dr. E, a consultant neurologist, dated 15 th September 2005. Dr E was Ms D's treating neurologist for 6 months up to 14 th September of this year. I have also had statements from Professor C, the treating consultant neurologist since the 14 th September 2005. He has provided statements dated 12 th October 2005, 14 th October 2005 and 25 th October 2005. I have also had a letter from Dr H and Dr E dated 28 th September 2005 and a further report from Dr Schady, another consultant neurologist, dated 20 th September 2005. Finally I have had a report from an expert consultant neurologist instructed by the Official Solicitor, Dr Newman. His report is dated 10 th October 2005. In addition to the expert evidence provided by these five consultant neurologists I have a joint report drawn up by Dr Schady and Dr Newman following a discussion which took place between them on 21 st October 2005. All the reports to which I have made reference are contained in the bundle of papers specifically prepared for this application. Apart from this written medical evidence I heard orally from both Professor C, Dr Schady and Dr Newman. So that was the extensive medical evidence which was provided to the Court.
However I have also had numerous statements from members of Ms D's family. Statements from her father (on behalf of himself and her mother), brother, sister-in-law, sister, uncle, aunt and another cousin have all been provided to me. I have read them with great care. In addition both Ms D's father and cousin, Mrs O'H, gave oral evidence to me. So far as the family is concerned one or more of them have visited Ms D on a daily basis for the last few months. To say their evidence was heart rending is an understatement.
Quite apart from the evidence to which I have referred I have been provided with detailed skeleton arguments by the Claimant and First Defendant. They have been extremely helpful to me as will become apparent later in this judgment. Counsel for the family provided a short skeleton argument which she amplified by full and skilful submission orally.
The Background and Chronology
Both the skeleton argument of the Claimant and First Defendant provide careful summaries of the background to this application. For the purposes of this judgment I rely upon that provided in the skeleton argument of the Official solicitor's counsel, Miss Harry Thomas. I make no apology for adopting it more or less verbatim.
Ms D, who was born on 31.7.1973, is 32 years old and the daughter of the Second Defendants. She is part of a closely knit, loving and devoted family. Her partner, Mr DM, is presently in prison, but has been visiting her...
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