Judge: Newton J
Citation:  EWCOP 42
P had a long history of kidney problems and had required regular dialysis. In November 2014, he suffered a cardiac arrest which caused his brain to be starved of oxygen for around 25 minutes. He sustained a severe brain injury. Around a month later, his treating clinicians applied to the court for declarations that it was in P’s best interests not to escalate his care, and to withdraw elements of the life-sustaining treatment he was receiving, on the basis that P was in a vegetative state. P’s family disagreed, and in due course (after the application had been made) further clinical assessment revealed that P was in a minimally conscious state. P’s treating clinicians still maintained that it was not in his best interests for dialysis to be continued. The court disagreed – the prospects of recovery to independence, or even to a reliable level of functional communication, were slim. But P’s wishes, although not written down or directed to the specific circumstances he found himself in, were ‘highly relevant’. In particular, the court noted that:
(1) Prior to his injury he told his cousin that he did not agree that people should be assisted to die, and that a life was no less valuable or less worth living if a person was chronically disabled or ill. That was powerfully confirmed by his cousin in evidence.
(2) P was a deeply religious man. He strongly believed that life was sacred given by God and could only be taken away by God.
(3) As a Sunni Muslim he believed that suffering was a component of predestination and someone else should not play an assisting role in shortening life merely because of the subjective quality of that life. It is against the tenet of his faith to do anything to shorten a life.
(4) He had powerful wishes and feelings which were well expressed and which should not be supplanted or substituted by anyone else’s view.
Thus, the court concluded that “the preservation of any life would be considered by P to be of significant value. His present circumstances are a life which P would find worthwhile, even though I entirely accept many others would not adopt the same position.” As a result, the declarations and orders sought by the hospital were not granted.
This case is an interesting illustration of the impact on end-of-life decision making of the Supreme Court decision in Aintree. Viewing the best interests test from this particular P’s perspective means respecting P’s wish to be kept alive in any state, just as much as it means respecting another P’s wish not to be kept alive. Futility had been thought post-Aintree still to be a concept that was predominantly clinical (i.e. it was a clinical rather than value judgment as to whether the procedure in question would work). This judgment might on one view be seen as encroaching further into the sphere of clinical decision-making here, although it is important to note that it became clear during the course of the case that the clinicians did not, in fact, pin their colours to the mast of ‘futility,’ but rather on the basis of a (good faith but incorrect) interpretation of what they thought the patient would have wanted (paragraph 35)). The case undoubtedly emphasised the importance of viewing matters through the eyes of the patient as regards the evaluation of whether the treatment was either overly burdensome and whether it would result in even a severely compromised quality of life that the patient would nonetheless regard as worthwhile. The implications of this approach, entirely in line with that in Aintree are significant, not just for patients, but in respect of wider issues concerning the application of scarce resources.
In this regard, it should also be noted that the judge was critical of the Trust for having brought the application relatively shortly after patient suffered the hypoxic brain injury, and before a SMART assessment had been carried out. Newton J emphasised the case was “yet another stark example of the absolute necessity for a structured assessment to have occurred before any application is even contemplated. I have been told in this and in other cases that misdiagnosis (of people who are said to be in a vegetative state but are in truth in a minimally conscious state) occurs in a remarkably high number of cases, the rate of misdiagnosis is said to be some 40%. That is not to say that in any way any male fides attaches to the treating clinicians. In this, as in every other case which I have heard, I have the utmost respect both as a human being and as a professional judge to the care with which they apply themselves, to these most difficult issues of which this is just such an example. Without a rigorous evidential analysis real mistakes can be made” (emphasis in the original).
The cases in which a SMART assessment has previously been said to be required by the court are primarily cases concerning applications to withdraw ANH, where the individual has been suffering from a disorder of consciousness for some time. It is not clear that the Royal College of Physicians’ Guidance on Prolonged Disorders of Consciousness requires such formal assessments to be carried out where clinicians are making decisions about escalation of treatment of a patient in intensive care within a matter of weeks after injury. Reliable diagnosis within a period of a few weeks or months may not be possible, even with the use of structured assessments, yet decisions will need to be taken as to what treatments to provide. The ‘window of opportunity’ for prompt decision-making in P’s best interests may be further threatened if the court requires long term formal assessment in every case (see the 2013 article by J Kitzinger & C Kitzinger ‘The ‘window of opportunity’ for death after severe brain injury: Family perspectives’ Sociology of Health and Illness 35(&), pp. 1095-1112).
This case therefore exemplifies the real dilemmas facing treating Trusts as to when, and on what basis, they are to bring applications relating to withholding or withdrawing life-sustaining treatment. Leave it too “late,” and they are criticised for failing to afford the courts sufficient time to consider the matter carefully (see e.g. Sandwell and West Birmingham Hospitals NHS Trust v CD  EWCOP 23); bring it too early, and they run the risk that the declaration is not granted, leaving the treating clinicians in a situation where they can feel (whether or not with reason) that their clinical judgments have been overridden by the court.