Judge: Hayden J
Citation:  EWCOP 2
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 ( 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.
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:
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.
This judgment stands as an interesting counterpart to that in Briggs v Briggs (2)  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: