Abertawe Bro Morgannwg University LHB v RY and CP

Summary

The central issue in this case was whether it remained in the best interests of a 81-year-old man, RY, to receive deep suctioning via a tracheostomy which the court had previously consented to on his behalf in an extempore judgment ([2016] EWHC 3256). His life expectancy was predicted to be around 6 months from the hearing. His level of awareness was on an 'upward trajectory', from him being in a coma to a vegetative state and now in a minimally conscious state. But his general physical condition was deteriorating and would so continue. Crucially, perhaps, he had the capacity for pain and, it must be assumed, the capacity for pleasure.

The man's daughter, CP, believed her father 'would want everything done' to preserve his life and he would have viewed that 'any life is better than no life'. However, her account of his wishes were unreliable. His 'voice' remained resistantly silent:

40… It is therefore particularly sad that, despite the efforts made, it has not been possible to identify RY's own wishes. I have arrived at the general conclusion that RY was a private, decent man who was not given to discussing his emotions and beliefs and had never allowed himself to contemplate, or at least discuss with others, the parlous situation in which he now finds himself. Perhaps this is no more (or less) than the 'sang froid' of an older generation.

41. Thus I am in the position here of evaluating RY's best interests with no evidence of sufficient quality to indicate to me what his wishes would be, were he to be in a position to communicate them. It would be both wrong to speculate, and in my view judgement, flawed to assume that in the absence of clear and reliable evidence as to RY's views, the emphasis on the 'sanctity of life' becomes in some way greater. This powerful and important consideration will always weigh heavily in the balance but it must not be allowed to quash all other considerations. Those whose voices do not carry through to the courtroom are just as entitled to protection as those individuals in the cases I have referred to above.

The true question was whether the tracheostomy was "overly burdensome." That is to say, "whether it can be rationalised as a proportionate intervention in the context of RY's medical welfare, having regard to his overall clinical situation." His Lordship found:

53. I have come to the clear conclusion that deep suctioning via RY's tracheostomy causes him pain, which may at times be considerable and at others less so. The tracheostomy serves its immediate function in the sense that it can, when required, substitute for RY's compromised cough reflex and clear secretions. In this sense the tracheostomy cannot be described as futile. The real question is whether, in the context of RY's poor prognosis and declining physiological circumstances, the deep suctioning can be said to contribute either to the quality or expectation of his life. Were it to do so it might justify the pain undoubtedly involved. I am satisfied on the evidence that it does not.  Society cannot ask those in the medical profession to cause harm without purpose.  To do so compromises both their integrity and, inevitably, the dignity of their patient.

On balance, however, the court decided not at this stage to grant the application to withdraw the relevant treatment. This was because (1) the realisation that deep suctioning causes pain came late in the day and those involved needed time to reflect on that finding; and (2) no deep suctioning had been required over the previous 4 days and so had become "delicately poised between what can properly be described as 'burdensome' and that which is 'overly burdensome'. In the absence of understanding RY's own views I believe the balance tips, for now, in favour of supporting life." If the suctioning became necessary as a regular and daily part of his life, Hayden J held that it would not be in RY's best interests and, in the absence of consensus, the Health Board would need to return to court.

Shortly after the judgment was delivered to the parties, RY died peacefully in hospital.

Comment

This judgment stands as an interesting counterpart to that in Briggs v Briggs (2) [2016] EWCOP 53. In that former case, it was possible to identify with a sufficient degree of certainty what P would have done; in this case, and despite very considerable efforts, Hayden J could not be satisfied that he had any equivalent basis to guide him in his determination of the decision that was right for RY. The case therefore stands as an important reminder that there may be circumstances where the starting point in determining what decision is right for the person cannot be their wishes, feelings, and alternatives must be sought.  It also stands as a reminder, however, of the importance of that the duty to seek to identify those wishes and feelings.

On an entirely different note, Hayden J also made a number of observations as to the filming of patients in prolonged disorders of consciousness as part of an assessment of their awareness:

52. I also feel bound to record some unease with these video recordings more generally. It is axiomatic that they are highly invasive of RY's privacy and that he has no capacity to consent to them. They have been viewed by a variety of professionals. Though Mr Badwan has found them useful here, I do not consider that video recordings should ever be regarded as a routine investigative tool.  Both the videoing and their distribution will require strong and well-reasoned justification.