An NHS Foundation Trust v VT & A



Judge: Hayden J

Citation: [2013] EWHC B26 (Fam)

Summary: This medical treatment case concerned a male patient who had previously suffered a stroke which had rendered him housebound. He sustained a cardiac arrest which caused his brain to be deprived of oxygen for some 17 minutes, resulting in a further serious deterioration in his condition. The NHS Trust sought declarations that it would be unlawful to provide intensive care and/or resuscitation other than bag and mask resuscitation to address an acute episode, should VT’s condition deteriorate any further. VT’s family considered that it was in VT’s best interests for such treatment to be provided. The judge summarised their position thus: They all believe that VT would have wanted to avail himself of every possible opportunity for survival in its crudest, most basic sense, no matter what the pain involved, no matter what the prospects for long-term survival might be, no matter what quality of life might lie at the end of the journey or, indeed, during it. Those ultimate decisions they believe to be for Allah alone. They believe that VT’s suffering would also cleanse him from sin, would prepare him for death and would be borne by him with stoicism, in recognition of that process.

The unanimous medical evidence, including that from an expert instructed by the family, was that VT was minimally conscious, that he had suffered a severe brain injury, and that there was very little prospect of any meaningful recovery for example communicative ability or motor function. At most, he might live for a further year if provided with all possible treatment, most probably still in a minimally conscious state. The court heard graphic evidence of what are often simply described as the ‘burdens’ of intensive care treatment, and noted the evidence that less than 1 in 5 people resuscitated in hospital survives to discharge. VT’s treating clinician told the court that even if VT’s family “had accurately described what VT’s view would have been, were he able to communicate them”, pursuit of those wishes would be “…against all the things I stand for as a doctor.”

The judge accepted that the interventions at issue would be “wholly contrary to the central medical objectives of intensive care,” noting that treatment would “at best only preserve the existing parlous situation.” CPR, even if successful, would result in further damage to VT’s brain. Even bearing in mind VT’s likely wishes, to administer CPR would be “to expect doctors to cause pain for no justifiable medical reason other than to accommodate the religious or other beliefs of a patient. It would require those who, through medical training and personal beliefs, want to help the patient, to do the exact opposite – that would be neither ethical nor lawful in my judgment.” However, the use of manual suction to remove respiratory blockages was lawful. Admission to intensive care would be ‘wholly futile’ because it would be:

  1. Likely to cause distress, discomfort and probably pain;
  2. Unable to achieve any positive medical benefit;
  3. Life-threatening, in and of itself;
  4. To further compromise VT’s vital organs, and therefore medically harmful.

Hayden J rejected attempts by the Trust and Official Solicitor to suggest that VT himself would have agreed with the medical view, accepting that the family was most likely to be correct, particularly having regard to their religious beliefs, particularly the ‘right’, if necessary, to suffer in accordance with his faith. Nevertheless, VT’s likely wishes could not require doctors to provide futile and harmful treatment to him.

Comment: This case is of particular interest as an illustration of what might be termed the Aintree approach: the giving of significant weight to P’s likely wishes even in a case where the medical evidence is that further life-sustaining treatment is highly unlikely to result in any meaningful recovery. The evidence cited in the judgment suggests that it was highly unlikely that an intensive care team would have been willing to admit VT, or that the staff already treating him would have administered CPR, since, as the judge held, that would have been to cause harm VT for no purpose. However, there was no positive assertion by any party that the option of receiving treatment was not in fact available (an issue which readers will recall troubled Moylan J in the Re L case recently). Despite the apparent absence of an ‘available option’ , the Trust no doubt applied to court because of the fundamental disagreement with VT’s family, but the lay observer may remain puzzled as to why so many public resources were expended in such circumstances. One explanation may be that there remains an unanswered question as to whether a clinician who says they would not provide treatment is making a clinical decision or a best interests decision. The decision of the Supreme Court in Aintree suggests that clinicians can make clinical decisions which the Court of Protection cannot interfere with, yet if the clinician’s decision relies heavily on their view as to the prospect of meaningful recovery for P, it is easy to see how the distinction between a clinical decision and a best interests decision will be more apparent than real.

The court concluded that the burden of the (theoretically) possible treatments outweighed the benefit (as perceived by VT) of continuing even the merest glimmer of life, conscious or not. This was not the result of the balancing exercise that VT would have conducted, had he been able, but the result was justified on the basis that causing harm to patients by providing treatment which carries no real prospect of sustaining conscious life is unethical, even if the patient’s religious or personal views support it. It does not appear that VT’s case fell within the class identified in Burke and endorsed in Aintree in which “the patient is close to death… the object may properly be to make his dying as comfortable and as dignified as possible, rather than to take invasive steps to prolong his life for a short while” as there was medical evidence that if VT was admitted to intensive care, he might live for as long as a year, albeit in a minimally conscious state or worse. If VT was not within the class of the patient who is close to death, then the judgment suggests that notwithstanding the Aintree approach, the global best interests decision is likely to coincide with the patient’s clinical best interests in a case where severely burdensome treatment will not improve the patient’s condition, even if it sustains a quality of life which the patient would have been content to endure.

CategoryBest interests - Medical treatment Date

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