Re B (Adult: Refusal of Treatment)
| Jurisdiction | England & Wales |
| Judgment Date | 22 March 2002 |
| Neutral Citation | [2002] EWHC 429 (Fam) |
| Docket Number | Case No: FD02P00072 |
| Court | Family Division |
| Date | 22 March 2002 |
In the matter of the Inherent Jurisdiction of the High Court
And in the matter of Ms B
[2002] EWHC 429 (Fam)
The President
The Right Honourable DAME ELIZABETH BUTLER-SLOSS The President
Case No: FD02P00072
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
Mr Philip Havers QC and Mr Jeremy Hyam (instructed by Leigh Day and Co.) for the Applicant
Mr Robert Francis QC and Mr Michael Horne (instructed by Capsticks) for the Respondent
Mr Peter Jackson QC for the Official Solicitor
Hearing dates : 6/7/8 th March 2002
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.
Dame Elizabeth Butler-Sloss, P.
This judgment is being handed down in public on 22 nd March 2002. It consists of 31 pages signed and dated by the judge together with the injunction, consisting of 2 pages, granted in respect of publicity.
UPON HEARING leading counsel and junior counsel for the Claimant, leading and junior counsel for the Defendant and leading counsel for the Official Solicitor
AND UPON READING the papers filed herein
IT IS ORDERED THAT:-
No written or photographic material shall be published or broadcast in any form whatsoever (save solely on a strictly confidential basis to any persons from whom the Claimant wishes to receive advice) to any persons whether in writing or electronically from which any of the following could be identified as being connected with these proceedings:—
(a) The Claimant;
(b) Any members of the Claimant's family or friends;
(c) The Defendant NHS Trust;
(d) A hospital in which the Claimant is being cared for or in which it is or has been proposed that she be cared for in the future;
(e) Any person caring for or treating the Claimant or whom it is proposed shall care for or treat her in future;
(f) Any person who gives evidence in these proceedings whether written or oral except Dr.T.Sensky.
This Order, unless varied by the Court, shall continue to have effect notwithstanding the death of Claimant.
There be liberty to any person affected by this Order to apply to vary or discharge it.
Dame Elizabeth Butler-Sloss, P.:
The Claimant, whom I shall call Ms B, seeks declarations from the High Court in its exercise of the inherent jurisdiction. She claims that the invasive treatment which is currently being given by the respondent by way of artificial ventilation is an unlawful trespass.
The respondent is the NHS Hospital Trust (the Trust) responsible for the hospital which is currently caring for Ms B, (the Hospital). At the request of the court the Official Solicitor instructed Mr Peter Jackson QC to act as Advocate to the Court. The main issue is whether Ms B has the capacity to make her own decision about her treatment in hospital. Underlying this important issue is the tragic story of an able and talented woman of 43 who has suffered a devastating illness which has caused her to become tetraplegic and whose expressed wish is not to be kept artificially alive by the use of a ventilator.
The History
Ms B was born on the 6th August 1958 in Jamaica, and has lived in the United Kingdom since the age of 8. She had an unhappy childhood but triumphed over many difficulties to achieve a degree in Social Science and Social Work, and a Masters degree in Public Policy and Administration. She is a qualified Practice Teacher for Social Work, and has a Management Diploma from a London College. She worked as a social worker for a number of local authorities and became a Team Manager. She was appointed in that role to a hospital and was promoted to Head of Department and Principal Officer for training and staff development. She is unmarried. She has a close circle of friends and a godchild to whom she is devoted.
Medical History
On the 26 th August 1999, Ms B suffered a haemorrhage of the spinal column in her neck. She was admitted to the Hospital and a cavernoma was diagnosed, a condition caused by a malformation of blood vessels in the spinal cord. She was transferred to another hospital where she stayed for five weeks. She was informed by doctors that there was a possibility of a further bleed, or surgical intervention, which would result in severe disability. On the basis of this advice she executed a Living Will (dated 4 th September 1999). The terms of the Will stated that should the time come when Ms B was unable to give instructions, she wished for treatment to be withdrawn if she was suffering from a life-threatening condition, permanent mental impairment or permanent unconsciousness. She was, however, also told that the risk of re-haemorrhage was not particularly great, and so she felt very optimistic about the future. Her condition gradually improved and after leaving hospital and a period of recuperation, she returned to work. Thereafter Ms B was in generally good health although she had some continued weakness in her left arm.
At the beginning of 2001, Ms B began to suffer from general weakening on the left side of her body, and experienced greater numbness in her legs. She felt unwell on the 12 th February 2001, and was admitted to the Hospital in the early hours of the 13 th February 2001. She had suffered an intramedullary cervical spine cavernoma, as a result of which she became tetraplegic, suffering complete paralysis from the neck down. On the 16 th February 2001 she was transferred to the Intensive Care Unit (the ICU) of the Hospital. She began to experience respiratory problems, and was treated with a ventilator, upon which she has been entirely dependent ever since.
Ms B told Dr R (a consultant anaesthetist in the ICU of the Hospital) and another consultant anaesthetist on about the 24 th February 2001 that she had a Living Will on file, and did not want to be ventilated. The doctors informed her that the terms of the Living Will were not specific enough to authorise withdrawal of ventilation. On the 23 rd March 2001 at another hospital she underwent neurological surgery to remove the cavernous haematoma. After the operation, her condition improved slightly. She regained the ability to move her head, and to articulate words. She was however, as she said, bitterly disappointed that the operation had not been more successful. It was at that time that she first asked for the ventilator to be switched off.
On the 26 th March 2001 she was assessed by Dr RG, a consultant psychiatrist from another hospital. On the 28 th March 2001 Ms B was returned to the ICU at the Hospital where she remains. She made a request to a consultant anaesthetist to have the ventilator switched off. On the 5 th April 2001, Ms B gave formal instructions to the Hospital, via her solicitors, that she wished the artificial ventilation to be removed. The Trust got in touch by telephone with its solicitors, Capsticks, who replied by a letter to the Head of External Relations. I shall return to that letter later in this judgment. A case conference followed and it was arranged that two independent psychiatric assessments would be conducted before any further steps were taken.
On the 10 th April 2001 she was assessed by Dr L, a consultant psychiatrist at the Hospital, who concluded she had capacity. On the 11 th April 2001 she was assessed by another consultant psychiatrist at the Hospital, Dr E, who initially found that Ms B did have capacity. Dr E on the 12 th April 2001 then amended her report to state that Ms B did not have capacity, after which Dr L amended his original assessment so as to agree with Dr E. After Dr E's initial opinion, preparations had begun to be made for the ventilator to be turned off. Ms B held discussions with one of the doctors and a lead nurse of the Hospital, and it was agreed that three days should be allowed for Ms B to say goodbye to her family and friends and to finalise her affairs. However, these preparations were called off after Dr E changed her report.
Ms B was prescribed antidepressants on the 13 th April 2001. She was seen by both Dr E and Dr R on the 30 th April 2001. Both doctors stated that on this occasion Ms B said that she was relieved the ventilator had not been switched off. On the 29 th May 2001, Ms B participated in assessment for rehabilitation, and agreed to try it. Long-term plans were made for her rehabilitation, with a view to eventually returning home with 24-hour care, or alternatively a residential nursing home. Dr R gave evidence that on the 29 th May 2001 Ms B, having been visited by the rehabilitation specialists, was "very cheerful" and "upbeat". She was referred to several spinal units. She received help, which is continuing, from a clinical psychologist. She was re-assessed on the 29 th June 2001 by Dr L, and on the 4 th July 2001 by Dr E. Their assessments did not provide a firm conclusion as to her mental capacity. On the 12 th July 2001 a bronchoscopy was carried out as part of treatment for a left lung collapse. At her request, an independent re-assessment was conducted by Dr RG on the 8 th August 2001. He indicated that he did not consider her to be suffering from depression and that he considered her competent to make the decision to discontinue her treatment. Thereafter the Hospital treated Ms B as having capacity to make decisions.
th August to the Hearing
Ms B made a further Living Will on the 15 th August 2001. On the 12 th and 25 th September two further bronchoscopies were performed with Ms B's consent. She was suffering respiratory distress at the time. The Medical Director considered that there should be involvement from an...
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