Re R (Adult: Medical Treatment)
|England & Wales
SIR STEPHEN BROWN, P
Medical treatment – adult – patient very severely afflicted existing in low awareness state – suffering five distressing hospital admissions in one year – consultant signing a direction that patient not to be given cardio-pulmonary resuscitation – whether direction lawful – application for declaration that withholding of cardio-pulmonary resuscitation appropriate and that withholding of antibiotics in case of life-threatening infection lawful.
The patient was born in 1972 with a serious malformation of the brain and cerebral palsy. As a young child he developed severe epilepsy. As an adult he was frail and weighed only five stone. He had an awareness of a new-born baby, was unable to walk or sit, was probably blind and deaf, and was totally dependent on care by others. He had lived at home until he was 17. Since 1989 he had resided at a national health service trust residential home. During the week he attended a day care centre operated by the local authority social services. He went home to his parents three weeks out of four. His medical care and treatment was the responsibility of his general practitioner and of his consultant psychiatrist, Dr S. He received a very high quality of care from his parents and all those involved in looking after him. However, he suffered from many complaints, including epileptic fits, recurrent chest infections, and bleeding from ulceration of the oesophagus and Dr S believed that his condition was deteriorating neurologically and physically.
During 1995 the patient had five distressing hospital admissions. After the fifth admission Dr S came to the conclusion that if he had another life-threatening crisis hospitalization would be nothing more than striving officiously to keep him alive for no gain to him. Dr S expressed her real concern as to whether it was ethical to treat the patient actively but said she would never withhold treatment against the wishes of his parents. After discussions between Dr S and the patient's parents it was agreed that if the patient should suffer a life-threatening condition involving a cardiac arrest he should not be subjected to cardio-pulmonary resuscitation which would be a dangerous operation having regard to the physical frailty of the patient and the risk of enhanced brain damage. Accordingly, Dr S, with the full support of the patient's parents, signed a NHS Trust direction headed "Do not resuscitate" (known as a DNR notice) which stated: "it is agreed that cardio-pulmonary resuscitation is not to be given to the above-named person". The form was also signed by the patient's mother and the home manager. However, members of the day care centre staff misunderstood the DNR notice to refer to a no treatment policy and they arranged for a "next friend" to make an application for leave to apply on behalf of the patient for an order of certiorari to quash a decision of the NHS Trust to apply a no
treatment policy. The following day the NHS Trust issued an originating summons seeking a declaration that it would be lawful if the patient developed a potentially life-threatening situation to withhold certain specified treatments. Subsequently, leave to apply for judicial review was granted. At a directions hearing a few days later it was ordered that the application for judicial review should be adjourned pending the disposal of the originating summons.
The Official Solicitor was appointed to act as guardian ad litem of the patient.
At the hearing of the originating summons, the summons as originally issued had been amended and the relief now sought was more restricted than that originally sought. The NHS Trust now sought a declaration that it would be lawful and in the patient's best interests: (a) to perform a proposed gastrostomy; (b) to withhold cardio-pulmonary resuscitation of the patient; (c) to withhold antibiotics in the event of the patient developing a potentially life-threatening infection which would otherwise call for the administration of antibiotics but only if immediately prior to withholding them the Trust was so advised by both the general practitioner and the consultant and at least one parent consented; and (d) generally to ensure that the patient suffered the least distress and retained the greatest dignity. A further application, that it would be lawful to withhold such life-sustaining treatment including artificial nutrition and hydration in order to keep the patient alive in his catastrophically brain damaged state, was adjourned generally with liberty to restore. The medical evidence adduced to the court made it clear that all parties agreed that it was in the patient's best interests that a gastrostomy should be performed and accordingly it would be premature to consider the question of withdrawing artificial nutrition and hydration. In the result the court was now effectively considering only an application that it would be lawful to withhold cardio-pulmonary resuscitation of the patient and, further, to withhold the administration of antibiotics in the event of the patient developing a potentially life-threatening infection.
As to cardio-pulmonary resuscitation, the director of Medical and Research Service at the Royal Hospital for Neuro Disability at Putney, Dr Andrews, gave it as his considered opinion that in the light of the extremely small potential for success and the distress which injuries would cause it would be wholly inappropriate to give this treatment to this patient. This view was supported by four other medical witnesses.
As to withholding antibiotics, Dr Andrews stated that this was a matter which could only be properly decided at the time when a potentially life-threatening situation from infection arose. There should not be, as it were, a "do not treat" policy. The plaintiff Trust was content to accept that position. The decision as to the withholding of the administration of antibiotics in a potentially life-threatening situation was a matter fully within the responsibility of the consultant having the responsibility for treating the patient. It was a matter which should be considered in conjunction with the general practitioner and the patient's parents. The Official Solicitor submitted that it would be appropriate for the court to make a declaration to that effect.
Held: In the present case there was no question of the court being asked to approve a course aimed at terminating life or accelerating death. The court was concerned solely with circumstances in which steps should not be taken to prolong life. The facts were very different from those in Airedale N.H.S Trust v. Bland  1 F.C.R. 485. In the present case the principle of law to be applied was that of the best interests of the patient as made clear in Re J (A Minor) (Wardship: Medical Treatment)  FCR 270 where the Court of Appeal had held that although there was a strong presumption in favour of the preservation of life, no principle of public policy regarding the sanctity of life displaced the paramountcy of the ward's best interest; accordingly, even where a ward was not terminally ill the court might in appropriate circumstances take into account the pain and suffering to the child if life-prolonging treatment were given and assess its effect from the child's position were he
able to make a sound judgment. The question as to when the court should rule against the giving of treatment aimed at prolonging life was to be answered in the words, of Taylor, LJ in Re J (above) at p 384 to the effect that the court should judge the quality of life the patient would have to endure if treated and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to him. The extensive medical evidence in the present case was unanimous in concluding that it would not be in the patient's best interests to be subjected to cardio-pulmonary resuscitation in the event of his suffering a cardiac arrest. The conclusions of the doctors were supported by the patient's parents. A declaration would be made that in this case it would be lawful as being in the best interests of the patient for those having responsibility for the patient's treatment and care to withhold cardio-pulmonary resuscitation of the patient.
(2) The administration or withholding of antibiotics was a decision which could only be taken at the material time. In Airedale NHS Trust v Bland (above) it was considered that, for the time being and for the protection of patients and doctors, the reassurance of patients' families and the reassurance of the public, the guidance of the court should be sought before withholding treatment from a PVS patient. But the hope was expressed that in due course applications might be limited to those cases where there was special need for a declaration. It was submitted on behalf of the patient in the present case that in the light of the factual and medical evidence it would be appropriate for the court to make a declaration in terms which would not require a further application to the court. Such a declaration fell fairly and squarely within the clinical responsibility of the consultant treating the patient. The consultant and the patient's general practitioner had his best interests in mind and they were fully supported by the patient's parents. Accordingly, it was in the best interests of the patient that the declaration sought should be made.
Per curiam: In 1993 the British Medical Association and the Royal College of Nursing had published a joint statement and guidelines on cardio-pulmonary resuscitation (CPR) aimed at clarifying the meaning of "do not resuscitate" (DNR) orders and which stated that these orders could be a potent source of misunderstanding and...
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