Judge: Cohen J
Citation:  EWCOP 32
A 46 year old lady, N, had breast cancer, and had only a number of months to live. Whilst in the taxi on the way to the hospital to seek assistance after complications with oral medication for her cancer, she suffered a cardiac arrest. For 20 minutes or so ceased breathing and suffered a severe hypoxic injury. In consequence she suffered a very significant and severe brain injury. She remained essentially unconscious. There was no anticipation of any significant improvement in her neurological condition, certainly within the life expectancy of her cancer which was some six to eight months.
Three issues were before Cohen J. The first was whether a tracheostomy tube should be removed; it had been inserted (following approval at an earlier interim hearing) to replace an oral tube which had been causing increasing discomfort and was causing irritation. The Trust sought removal of the tube because they considered that nothing more should be done to extend or prolong N’s life. Removal of the tube would have the effect (but not the purpose) of hastening her death, either because N would “die either by infection of the secretions [that would build up] or would drown.” The family, and the Official Solicitor, wanted to keep it in place; the judge accepted their contention that N would want a natural death, such that it “would need a very good reason to hasten it in this way.” Cohen J came to the clear view that the tube should remain in place.
The second issue was as to whether or not N should receive an escalation of invasive care or treatment, in particular vasoactive drugs, renal replacement therapy, ventilation treatment that requires central venous action or CPR. There was agreement in relation to all of these in relation to antibiotics, which the family wanted on the basis that this was “treatment for a super‑imposed condition which would not cause her natural death if treated.” Cohen J held that antibiotics do not need to be provided in the event of there being an infection and that it would not be in N’s best interests to provide treatment to seek to avert what would be a natural death.
The last issue was in relation to the administration of morphine. Although N did not discuss her health in a significant way with her family, she and other members of her family did have a fixed objection to morphine. That came from the fact that two members of the family had died at a time that they were taking morphine which had been prescribed for them as a result of very serious health difficulties which they themselves had. The family had formed the view that morphine had played some part in the demise of those two relatives. Although N was not yet far up the analgesic ladder potentially to require morphine, the evidence from her treating team was that there was no better substitute to morphine. However, her treating doctor accepted that “if a conscious patient had been able to make a balanced decision that he or she did not want morphine he would not seek to impose it upon the patient.” Cohen J noted that he, “of course, ha[d] to take the decision for others, but I bear in mind the strong family opposition shared by N to the use of morphine.” He therefore authorised medications, but not morphine. However, he gave the Trust permission to apply in relation to morphine if in due course it transpired that there is no alternative that might be able to do the job. As he noted:
Whether the court will order it will depend on the circumstances at that time, but if all other avenues have been exhausted it seems to me that it would be quite wrong for me to bar the treating team from a position of being able to apply for permission to use morphine in circumstances where their conscience makes this, not only highly desirable, but something that should be imminently implemented.
Although this case was decided shortly before Y (but not reported until more recently) this is the quintessential example of a case which would still be required to come to court even following the clarification of the scope of s.5 MCA 2005 in that case. What does not appear from the judgment in this case is whether mediation was attempted, but, again, this is a paradigm case in which such might have bridged the gap between the family and the treating team as to what was in N’s best interests.