W Healthcare Nhs Trust v H
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LORD JUSTICE CLARKE,Lord Justice Brooke |
| Judgment Date | 17 September 2004 |
| Neutral Citation | [2004] EWCA Civ 1324 |
| Docket Number | Pro forma |
| Court | Court of Appeal (Civil Division) |
| Date | 17 September 2004 |
[2004] EWCA Civ 1324
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MR JUSTICE COLERIDGE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke
(Vice President of The Court of Appeal, Civil Division)
Lord Justice Clarke
Mr Justice Maurice Kay
Pro forma
The Appellants appeared in person
MR ROBERT FRANCIS QC (instructed by Beachcroft Wansbroughs) appeared on behalf of the First Respondent
MR HUW LLOYD (instructed by the Official Solicitor) appeared on behalf of the Second Respondent
This is, as so often happens in these life and death cases, an intensely distressing case. Formerly it is an appeal by Mr H and Miss PH from a judgment of Mr Justice Coleridge today, which had the effect of permitting the claimant Trust to re-insert a percutaneous gastrostomy tube (PEG) into KH in order to allow nutrition to continue on a permanent basis. KH herself appears by her litigation friend, who is the Official Solicitor. The Official Solicitor supported the application of the Trust in the court below and supports the Trust's opposition to this appeal. Mr H is the brother of KH and P is one of her daughters.
So far as the facts are concerned, KH is now 59. She was born on 10 December 1944. She has suffered from multiple sclerosis since the middle of the 1970s. There was evidence before the judge, about which I think there was no dispute, that for all practical purposes she has been incapable of taking informed decisions for herself for at least 20 years. Ten years ago her condition had deteriorated to the extent that she had to be received into a local nursing home, which has been her home ever since except for her admissions to hospital. Her condition has been such that she has required feeding by PEG for the last five years and she is now in a pitiful state. Most of her bodily functions have ceased to work because of the insidious effect of her illness, and she requires 24-hour care to enable her to survive. Her swallowing is unsafe; she is doubly incontinent; she is conscious but not much more than that; she cannot speak more than the odd word; she is disorientated in time and place; and she now recognises nobody, not even those who are closest to her in her family.
KH was admitted to her local hospital in the early hours of the morning on 30 August. Her PEG tube had fallen out the previous day. Although her daughter has expressed her own belief as to what happened, the judge, after hearing evidence which included evidence of one of the doctors at the hospital who had spoken to the staff at the nursing home, concluded that the PEG system had been functioning without any problems until 29 August when it became dislodged in circumstances which are not wholly clear but which were probably accidental. It is quite impossible for this court to interfere with that view of the judge who heard the evidence.
When she came to the hospital one of the consultant physicians felt that the PEG tube should be re-inserted, but in the meantime hydration was maintained with an intravenous drip. When it became clear that the family did not wish the tube to be re-inserted, she was transferred from the medical admissions ward to another ward of the hospital when she came into the care of Dr G, a consultant physician. Dr G has been responsible for her care since then. It is her wish to have the PEG reinstated. We were told by Mr Lloyd that the evidence was that it was the unanimous view of those responsible for her care that it should be reinstated. As I have said, the Official Solicitor supports the Trust's application. These proceedings have come about because when Dr G first met PH on 2 September to discuss the question of re-insertion of the tube it became clear to her that the family were resistant to this proposal. The attitude of the family, to which I will refer, is in effect unanimous.
Dr G in a written report said that on 2 September KH c could open her eyes to speech. She could obey one-step commands such as being told to stick her tongue out. She made occasional single-word, seemingly appropriate, answers to questions. For instance, if she was asked "How are you?" she would say "Fine". She had marked spasticity in all limbs. There was no sign of any concurrent infection. The only acute problem was the lack of a PEG tube. She was not orientated in time, person or place. It is completely common ground that she is not capable of giving an informed consent. The view of Dr G—confirmed by Dr W, a consultant psychiatrist—is that KH is not at all likely to develop capacity to make personal decisions for herself in the future. That statement of her condition is totally shared by the family.
When it became clear that her family were resistant to the idea of the PEG being introduced, the hospital made inquiries of different members of the family. Their evidence went along these lines. KH's other daughter T, who was in Portugal at the material time, said that she was her mother's carer just before she went to the nursing home, when she was 23 years old. She was tucking her into bed one night and told her about the home. Her mother said, "We cannot afford it", but her daughter said, "Don't worry about that". Her mother said, "I don't want to be kept alive by machines." Her daughter then started sobbing and kissed her goodnight.
Mr H says of his knowledge of his sister's state at that time that it is debatable if she really knew what she was saying 10 years ago.
Mrs N has known KH since 1976. They had children at the same school and lived nearby. They soon became great friends and have remained great friends through the years. They were both divorced, and they had much in common. She was only the second person to whom KH passed the information that multiple sclerosis had been confirmed. At that early stage KH was capable of making sensible decisions. Mrs N said that in the next years they talked a great deal about death and about never wanting to have anything but the best quality of life. KH had said over and over again that she would never be a burden to the girls if she could not look after herself. If she had to go to hospital and the time came when she could no longer recognise the girls, she did not want to be kept alive. She said this over and over again. She said this very strongly when she became more dependent on the nursing staff in the nursing home. Mrs N said they agreed they would always look after each other's children, and she has had constant contact with both KH's daughters over this distressing time. She had no doubt whatsoever that what KH would want now was to be allowed to die and be at peace.
Mrs N gave evidence at the hearing, and the judge recorded, very briefly, the effect of the evidence that he received from both the present appellants and from Mrs N. He said:
"No one who heard them give evidence and argue their cause yesterday could have been anything but profoundly moved and impressed. To advocate for the speedy death of a very near and beloved relative is not a task one would wish upon one's worst enemy. The sincerity and passion with which they advanced their points has made my task horribly difficult."
The judge's concern about the present state of KH is reflected by the fact that, in giving leave to appeal, he said this:
"I have given leave to appeal because this is such a borderline decision. But for the recent case law, I would have refused the Trust's application. The family's case is as strong as it could be about the patient's horrible existence and wishes. I think therefore they have an arguable point."
So far as the rest of the family's evidence is concerned, T described what happened when she went to the hospital five years ago when the PEG was fitted. She feels very strongly that she did not really understand the matter to which she was consenting. She felt it ought to have been explained and discussed with the family before a decision was taken. She wishes she could take back that consent. She does not believe it is in the best interests that the PEG should be there. Her mother has no quality of life, and has pain and suffering, and does not want to be kept alive. That evidence has been echoed by other members of the family. The hospital authorities have spoken to three or four other members of the family. In other words, it is a case in which a wonderful, caring family are unanimous that KH would wish to die in these circumstances. I have said that these cases are always very distressing.
English law places a very high value on life. The value that English law places on life is now reiterated by Article 2 of the European Convention on Human Rights—which is, in effect, part of our law—which recites that everyone's right to life shall be protected by law. About 20 years ago there was a big debate about what the law should be when somebody was incapable of taking decisions for themselves and their doctors wished to treat them. There had not been very much thinking about these problems in this country. There were two rival schools of thought. One was that the decision should be taken by an appropriate body in the best interests of the patient. The other was a concept of substituted choice, which applied in certain jurisdictions overseas, by which the court would do its best to put itself in the shoes of the patient and decide what the patient would have chosen if he/she had been...
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