Judge: Mrs Justice Theis
Citation:  EWCOP 64
Theis J reconsidered the best interests of 56 year old Covid-19 patient AH for whom treating clinicians considered artificial ventilation was no longer in her best interests.
This was a rehearing of the case following a successful appeal. In a widely reported case in November last year  EWCA Civ 1768, the Court of Appeal allowed the appeal against the order of Hayden J that it was no longer in AH’s best interests to receive ventilator support and treatment owing in large part to Hayden J conducting a judicial visit after which he observed “I got the clear impression she wanted some peace, she showed me that she did”.
The Court of Appeal held [71-3] that this meeting and observation undermined the judge’s reasoning on AH’s best interests because a) he was not equipped to gain any insight into AH’s wishes and feelings from his visit; and b) having conducted what became an evidence-gathering process, procedural fairness required that parties ought to have been given an opportunity to respond to his observations.
The case was subsequently remitted to the High Court for a hearing before Theis J. AH’s treating clinicians continued to seek an order that it was no longer in her best interests to receive artificial ventilation; her four adult children and sister T vehemently opposed such an order.
Theis J summarized the background to the case :
In January 2021 AH developed a systemic inflammatory response syndrome (‘SIRS’), a recognised complication of Covid-19, with hyperpyrexia and multi organ failure. AH required renal dialysis, ventilation and sedation. This caused devastating damage. The episode was described by the clinicians as a ‘cytokine/autoimmune storm’ and resulted in a number of profound and permanent neurological and myopathic conditions, namely cerebral encephalopathy, brainstem encephalopathy, motor neuronopathy and necrotising myopathy. In lay terms, AH suffered extensive and devastating damage to her nerves, muscles and brain as a consequence she is paralysed from the neck down, is unable to speak, is tube fed, doubly incontinent and has been on mechanical ventilation since early January.
By June 2021, AH’s clinical team had noted a slight improvement which was also accompanied by a “visible and marked increase in her distress”  such that, following discussions with the Clinical Ethics Advisory Group, the balance of benefit was considered to swing against continued treatment.
While AH’s family agreed that there would be no escalation of critical care support and no cardiopulmonary resuscitation, they did not agree to the total withdrawal of treatment, noting AH to demonstrate “occasional shafts of happiness” when seeing her family. The family’s evidence was that, as a practising Muslim and devoted mother, AH would have wanted all treatment available to maintain her life.
Evidence from expert the consultant intensivist instructed on behalf of the Trust, Dr A , suggested to the court however that AH presented as “’obviously and almost continuously distressed’ and that this is a ‘ubiquitous feature of her clinical examination’”  His evidence was that AH was in ‘MCS+,’ ‘a state of wakefulness with minimal awareness’ albeit that Dr A considered that AH did not meet some of the definition of MCS+ which is where ‘Patients show – some evidence of language processing/communication such as following simple commands, intelligible verbalisation or intentional communication, albeit still inconsistently’ . The Prolonged Disorders of Consciousness Guidelines also refer to evidence of a feature of MCS+ as ‘evidence of reasoning/problem solving (either verbal or non-verbal)’. Dr A stated in evidence that he had never seen this and considered it conceivable that AH’s global neurology or neurological state was in fact less than had been believed and there is the risk that they may be erroneously attributing a higher level of function to her facial movements, which may simply be mimicry. He considered AH showed no ability to react spontaneously by smiling.
The evidence of Dr Danbury, the intensivist instructed by the Official Solicitor was that AH was in Terminal Decline of Consciousness and would inevitably remain ventilated for the rest of her life. He considered the process of her dying, if she remained in intensive care, “’will take months and will be progressively more distressing for her, her family and her carers’.”  Theis J noted in her judgment:
Dr Danbury gave evidence not only on the likelihood – or inevitability – of AH dying in the ICU but also of the burden of treatment. He gave evidence to the court that those patients he had been able to speak to after periods in intensive care likened treatment such as suctioning (which AH was having to experience every 2-3 hours) to being like a “red hot poker” .
AH’s family gave evidence that her religious beliefs as a practising Muslim meant she would not want mechanical ventilation withdrawn. 
Having heard all the evidence from a number of clinicians and family members, Theis J ultimately determined it was no longer in AH’s best interests to continue to receive treatment. She held:
The medical evidence in this case was very clearly pointing in one direction – that continued ventilation was no longer in AH’s best interests. Nonetheless, it is ultimately what Theis J considers AH would have considered important that is held up as a determining factor in the judicial decision-making: part of the continued trend of judicial emphasis (rightly, we think) on P’s likely decision-making, a concerted effort to stand in P’s shoes, rather than a top-down consideration of what is “best” for P.