NHS Windsor and Maidenhead Clinical Commissioning Group v SP (by her litigation friend, the Official Solicitor)

Summary[1]

SP was 50 years old when she suffered a cardiac arrest in October 2014. She was admitted to hospital, treated with clinically assisted nutrition and hydration (CANH) and never regained consciousness. In March 2015, she was transferred to the care of a nursing home and, in April 2015, she was diagnosed as being in a permanent vegetative state (PVS).

Two best interests meeting were held in March 2015 and October 2016 which concluded that it was in SP's best interests to withdraw CANH and provide palliative care only. Although it was very difficult for some of them, all of SP's family agreed that SP would not have wished to live in this condition and that it was in her best interests to with CANH.

In October 2016, the CCG approached the OS to invite him to consider a streamlined application to the court. The OS agreed to act for SP in January 2017 and investigate her case. The OS instructed an expert, Dr Hanrahan, and consulted SP's family. Dr Hanrahan reported on 17 July 2017 and 20 November 2017. Dr Hanrahan confirmed much that the earlier doctors had concluded, namely that SP was in a PVS and that further CANH was not in SP's best interests.

On 15-16 February 2018, the OS confirmed that he and the family were content for the application to the COP to be made on the papers. The proceedings were issued on 19 March 2018. The Court was invited to determine the application without a hearing but with the provision of a public judgment.

After setting out the legal framework and case law, Williams J held (at paragraph 35) that the following factors were most relevant in deciding that it was not in SP's best interests to continue receiving CANH:

i) The medical evidence is clear that SP is in a permanent vegetative state with no prospect of improvement. She will never regain capacity and cannot participate in decision making.

ii) The medical benefits of CANH are limited to simply keeping her body alive. The person that was SP in so far as a person is their personality no longer exists and can never return. CANH cannot help SP to regain consciousness or to resume any part of the life she led. She derives no benefit from living save insofar as being alive in itself (albeit with no awareness of being alive) is a benefit.

iii) Palliative care will reduce to a minimum any experience that SP might have of discomfort or pain as a result of CANH being withdrawn.

iv) The evidence of her family and the nursing staff from their observations of SP is that there has been no improvement in her condition over the years and that her symptoms are consistent with her having no awareness of her surroundings. This is the experience of her closest family including her children; if she was likely to be aware of anyone it would be her children.

v) No one is motivated by a desire to bring about SP's death but rather that it is not in her best interests to live like this.

vi) SP had expressed the view to her son whilst watching a programme about a person in a PVS that she would rather die than stay in a bed for years in that condition. SP had expressed the view that if someone close to her was ill like her father had been she would turn off the life support and not leave them in that state. I accept that she had expressed a wish not to live in the sort of situation she is now in.

vii) SP's actions in life in particular in relation to her approach to her father's terminal illness support the contention that she would prefer the withdrawal of life-sustaining but futile treatment and a move to palliative care only. I accept that her beliefs and values are such that they would influence her to want to have CANH withdrawn,

viii) Her family and friends (those interested in her welfare) are unanimously of the view that having regard to her personality and how she was before the cardiac arrest that she would not want to live as she is now and that it is in her best interests for CANH to be withdrawn and palliative care implemented. The doctors and nursing staff involved in her care are of the view that this course is in her best interests.

ix) The contrast between the full life SP led before the cardiac arrest and her existence now could not be more divergent. For a woman who loved life and lived it to the fullest she would find her current situation intolerable. Not only for her own sake but I believe also to relieve the suffering that her family endure from seeing her in this condition she would want to adopt a course which would end her and their suffering. She would not want to be a burden and would want her family to be able to move on with their lives and remember her as she was. In this case that means ending CANH and entering a palliative care programme.

x) She would want before leaving this life to be satisfied that her minor children were properly provided for and that nothing further could be done in her name to provide for them and their future. I accept that the family believe what has been done would meet with her approval. I also am satisfied she would endorse those arrangements and accept that there was no more she could do.

xi) The withdrawal of CANH has been planned and will be implemented by the nursing team with input from a hospice nurse. Her family understand what it involves and the timescales. They would have preferred for it to occur in February.

Comment

This case is significant as being the first in which the withdrawal of CANH has been authorised by the court 'on the papers' without a hearing. Whilst the collaborative approach between all parties (the Trust, the family and the OS) is to be commended, the length of time between the best interests meeting on 7 October 2016, at which it was decided that it was in SP's best interests to withdraw CANH, and the eventual decision of the court on 20 April 2018 is striking. Most of that time appears to have been devoted to investigating the circumstances of SP's case and obtaining an expert report by the OS which confirmed the conclusions of two other clinicians. After the investigations had taken place, the application was issued in March 2018 and dealt with by the court within one month. If, following Re Y [2017] EWHC 2866 (QB) and the outstanding appeal to the Supreme Court, it is correct that there is no requirement to come to court where P's family and the clinicians are in agreement that it is in P's best interests for CANH to be withdrawn, then this appears to be a case in which treatment could have been withdrawn from SP following the best interests meeting in October 2016 (some 18 months earlier). The move towards a streamlined approach by making an application on the papers where all parties are in agreement is both sensible and pragmatic, but it may be that such applications are not necessary at all in the future. The judgment of the Supreme Court in Re Y is awaited with interest.

[1] Tor being involved in the case, she did not contribute to this note.