Northumbria Healthcare NHS Foundation Trust v HX, CX, SX

Summary 

HX was in her late 40s and suffered a cardiac arrest resulting in severe and irreversible brain injury with no prospect of recovery. She had been living with her son who opposed the withdrawal of treatment. Although they had not previously discussed end of life care, his view was that she would have wanted treatment “to make her better or at least make her comfortable and give herself time to make a recovery”. Whereas her mother’s view was that HX would not want to be alive in these circumstances. The truth, however, was that there was very little evidence available as to what HX would want for herself in this situation. The hospital applied for a declaration that it would be lawful and in her best interests to receive palliative case.

Cusworth J reviewed the medical and family member’s evidence. The main issue was whether there should be a delay before the decision was made. The medical evidence was that no treatment was available to improve her condition, and that further time would not be in her best interests. There was concern that she was unlikely to physically survive her illness or her admission to critical care over the coming weeks. If she did survive, she would do so to a catastrophically diminished level of neurological function. It was unlikely that HX would regain use of her higher functions (thoughts, feelings, communication, self-awareness, agency).

His Lordship decided that a delay would give the family more time to come to terms with her condition but would not serve to enable any treatment which could alleviate it. Although it could not yet be determined whether or not HX would eventually come to be diagnosed as being in a vegetative or minimally conscious state, it could be said with a very high degree of probability that her recovery trajectory would not enable her to progress beyond those levels. As Cusworth J noted at paragraph 63:

I must accept that if I had clear evidence that HX would favour a continuation of life-sustaining treatment in her current condition, it would be likely to be in her best interests for such treatment to continue. However, when I come to balance the factors for and against continuing the treatment, I am not able to include HX's views as a determinative factor.

Instead, continued treatment would cause her great pain and distress if she were able to experience it, and that was all that lay before her with no real hope of recovery. His Lordship could not find that, if she had known of the situation that she would find herself in, she would have chosen to remain in her current condition indefinitely, with no prospect of ever returning to any level of function. Considering all the evidence, it was decided to be in her best interests to begin to implement for her a palliative care regime, the consequence of which (but not the aim) would be the end of her life.

Comment

This decision illustrates both the importance of knowing what P would want given their current predicament and the approach to be taken where P’s view is not ascertainable. Following the line of case law since Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, it reflects the importance of considering best interests from P’s vantage point. This CRPD-inspired move away from objective balance sheets towards P’s perspective challenges the autonomous and non-autonomous decision-making binary in seeking to empower those who cannot decide themselves. However, as Lady Hale observed in Aintree, it is “still a “best interests” rather than a ‘substituted judgment’ test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie.”