Judge: Keehan J
Citation:  EWCOP 29
HB, a 61-year-old mother of 8 with a significant history of diabetes and chronic kidney disease suffered a cardiac arrest in July 2018. Six weeks after her collapse, the treating Hospital trust brought an application to court, in essence, for confirmation that their proposed ceiling of care was lawful and in HB’s best interests.
HB had suffered an irreversible brain injury and was diagnosed as being in a vegetative state, but not a persistent vegetative state given the shortness of time since her injury. The applicant Hospital Trust proposed downsizing her tracheotomy, removing her arterial and intravenous lines, transferring her to a respiratory ward and providing her with ongoing nursing care including the administration of nutrition hydration and medication via NG tube: “Part 1” of the treatment. It sought a declaration, however, that the proposed “Part 2” of her treatment plan, being more active resuscitative care in the form of CPR, renal replacement therapy, vasoactive drugs, ventilation and a potential transfer back to ITU, would not in HB’s best interests.
HB’s 8 children, represented by her daughter and attorney FB and the Official Solicitor on HB’s behalf, agreed with Part 1, but opposed the declaration sought in relation to Part 2.
Keehan J heard telephone evidence from, among others, Dr Chris Danbury, a consultant intensivist as expert instructed by the Official Solicitor, and from HB’s daughter FB. Keehan J heard that HB’s husband had died of a heart attack 12 years previously and that his death had had a significant impact on HB and her children. Further, he heard that that FB had been appointed as HB’s attorney for health and welfare and that she and her mother had discussed HB’s wishes and feeling in the context of a previous hospital admission. FB gave evidence that HB was a practising Muslim and would wish all possible steps to be taken to keep her alive.
Dr Danbury gave evidence to the effect that it was simply too early to tell what HB’s prognosis might be. He noted that she had suffered a very serious brain injury and her prognosis was poor but that if ten patients were placed before him with the same injury in the same timeframe, he would be unable to predict which of them would make no recovery whatsoever and which of them would make some recovery from their current condition. Dr Danbury did not support the Trust’s application in relation to Part 2.
Keehan J’s conclusions bear setting out in full:
Keehan J’s judgment does appear at first blush significantly to privilege the view of P over a more objective assessment of medical opinion but the facts of this case appear very much to have been driven by the shortness of time since HB’s injury and the evidence of Dr Danbury as to what her prognosis might be.
In its emphasis upon what HB would have wanted, the case is a powerful example of the post-Aintree approach to best interests decision-making in the medical field. One suspects that the clinicians may have felt more than a little discomforted at the conclusion that administering CPR would be in HB’s best interests on the facts of the case. It is crucial to be clear, however, that they were not being ordered to provide it (and nor could they be: see Aintree at para 18). They had come to court to ask it to confirm that certain treatments were in HB’s best interests, and certain treatments were not: that approach, in and of itself, gave rise to the possibility that the decision-maker (the court) would take a different view.
 Note, this decision was reached in October 2018, but did not appear on Bailii until February 2019.