St George’s University Hospitals NHS Foundation Trust v UJ & Ors

Summary

This very sad case, decided in the summer, has only recently come to our attention.  A 45 year old man attempted to take his own life by shooting himself in the head with a crossbow arrow. As a result, he was taken to A&E at the Trust, and underwent emergency surgery to remove the arrow and the insertion of an external ventricular drain.   His body was then unable to drain the fluid his brain was producing. This had been managed by a combination of procedures including lumbar punctures, a lumbar drain, and an external ventricular drain, but this was no longer sustainable, and he therefore required surgery to insert a shunt as a permanent solution to draining the fluid; not carrying out the surgery would (as Theis J put it) “negatively impact his long term recovery,” and was likely to lead to his death.  The Trust made an urgent application to authorise the surgery.  Theis J recorded the family’s position thus:

18. The evidence from the family has been given in statements and oral evidence. There are detailed and moving written statement from his aunts and cousin. They speak as one voice, about how much UJ valued his independence, especially walks with his dog and his adventurous spirit. They explain that to be trapped in a body which cannot move or function independently is a fate that he would consider a living torment. The shunt cannot remove the original damage caused. That act of self-harm was a tragic expression of the deep pain he was experiencing. To undergo further surgical procedures is something he would not want, as interventions to maintain a minimal, highly compromised existence is described in the statements as a “violation of his dignity and who he was as a person”. His maternal cousin describes how close they area, that he loves art in all its forms. His biggest passion is solo travel, and she describes him in her statement as adventurous. She brings to life his wanderlust, his phrase of choice.
19. The family have nothing but praise for the medical team, however, they consider that the medical best interests for this course of action and UJ’s best interests are being conflated.
20. His cousin, EM, said that to take away his autonomy and add to his disabilities would be truly devastating to him. She considers UJ would not align with this treatment and would fight against it. In her statement she says: “To take away his autonomy, his independence and any to add of the disabilities that have been touched upon would be truly devastating to him. I say with conviction, UJ would not align with this treatment and would fight against it. I’m sure that in most cases, for most patients, this this treatment could be the best course of action. However, UJ’s outlook on his own life along with his views on the world, do not necessarily align with the masses. I would like it to be considered how UJ will live out the remainder of his years beyond the proposed treatment and rehabilitation. Whilst the prognosis spectrum is exceptionally broad, I can say with confidence, that’s even with the best case scenario that the medical team can predict UJ would be deeply unhappy. Subjected to lifelong disabilities, stripping him of his dignity, reliant on others for his day to day care. We cannot yet predict whether he will see, walk, talk or even have the capacity for basic human functions of feeding and toileting independently. But beyond this, my main concern is the mental load that will take its toll on UJ when, if ever, his condition allows him to become conscious enough to be aware of his state, and the immense pain and suffering that will cause him for the rest of his days. Let it be known, I understand that without the procedure, UJ will not pass away imminently, I am clear that without the procedure, UJ will live, for an unknown amount of time. A burden that we, his immediate family, will happily take on as his carer; but he will live without the awareness of his condition. At peace that before the incident, he fulfilled his goal in life. He lived it fully, independently, without apology. He lived a life less ordinary, a life that most can only dream of.”
21. In her powerful oral evidence, UJ’s mother recognised that her position has changed. As she set out, she initially supported the treatment proposed, but as she thought about it more, she knew in her heart that this would not be what UJ wanted. Her initial view was as a mother, not expressing UJ’s wishes. She was clear in her oral evidence that UJ wouldn’t want to live with a disability. Being dependent on others was not the way he lived his life, and she was sure he would want to die.

The final position of the parties at the conclusion of the evidence was set out at paragraph 5:

The position of the parties at the conclusion of the evidence was that the Trust still maintained its application, but they maintained it in a neutral way. They wanted to bring this matter before the court, and it was still their clinical judgement that this procedure should be undertaken. The family have listened to the evidence with great care, and maintained their position that they do not support the application. Simply put, they do not think it accords with UJ’s best interests, including his wishes and feelings and beliefs and values if he was able to be here today. The Official Solicitor reserved her position until the evidence had been heard. Ms Hearnden has specifically taken instructions from the Official Solicitor herself, and on a fine balance, she supports the position of the family in opposing the application being granted.

Theis J’s conclusion was as follows:

32. Standing back as I have to do, this is a finely balanced decision. I have to factor in a number of matters. The importance of the sanctity of life is a powerful and compelling force. Dr A’s evidence is that this procedure is the best opportunity for rehabilitation, whatever it may be, though that is largely unknown within the range indicated. Dr A’s evidence highlighted the disability paradox, in that sometimes those who one would not expect to be able to gain enjoyment out of life in such circumstances in fact do. The court needs to be very cautious about any unquestioning acceptance in relation to what may be said to be UJ’s views. All of those views need to be weighed in the balance. There is no dispute in reality about the evidence from the family about wishes and feelings and beliefs and values. Their written evidence is thoughtful, considered and reasoned. They have known UJ over many years, in many different and difficult circumstances. They should be given considerable weight. They speak with one voice that he wouldn’t want the procedure. I have to recognise that this is not from UJ himself, and what he would think now, following three months in hospital is still unknown. They are reporting a position prior to the incident in April, and one has to be cautious as to what Ms Hearnden describes as the ‘detective position’ in trying to second guess what his view was on 24 April 2026, and whether he really did intend to end his life. It is right to record that the attempt was of a different nature to his previous attempts, with UJ having taken the additional steps to write ‘DNR’ on his chest and arms to make it clear on what he thought.
33. Each case is fact-specific, by definition, and the court has to weigh very carefully in the balance the importance of the sanctity of life and wishes and feelings, with no direct evidence from UJ. The court also needs to look at the quality of the evidence it does have about what his wishes would be.
34. I have reached the very sad conclusion that the application for the Trust should be refused. I recognise the sanctity of life and  consider that even though it does give him some prospect of recovery, it is a recovery with a wide spectrum, which I have to view in the context of the evidence from the family, which I accept, about what his wishes and feelings and beliefs and values are likely to be.
35. My conclusion is that this is not a procedure he would support or want to take place. For those reasons, with very great sadness, I refuse the application.

Conclusion

It is hardly surprising that, as Theis J made a point of recording, Counsel for the Official Solicitor sought specific instructions from the Official Solicitor herself before advancing the proposition that it was not in UJ’s best interests to undergo the surgery proposed by the Trust, given the sensitivities around a situation which could by some – but wrongly – be characterised as “suicide by doctor.”

It is also hardly surprising that Theis J also expressed the need for caution before simply accepting unquestioningly what might be said about UJ’s views.

However, it is difficult when reading the (admittedly short) judgment not to feel that the approach in this case entirely captured the point of the best interests exercise.  And one reason that this might have been is that this is a case in which the doctors did exactly what we would hope: i.e. to deploy their clinical judgement to set out what the right course of action clinically would be, enabling (in this instance) Theis J to stand in the shoes of UJ to make an informed decision as to whether or not to accept that advice, taking account not just the clinical input but also the wider picture.  It therefore stands in interesting contrast to the decision in the MSP case where (as Alex has discussed here) a strong case could be made that the doctors abdicated their responsibility to set out the full clinical picture, disabling the court from making a truly informed decision as to whether life-sustaining treatment should continue.  The decision in the Epsom case has not helped the cause of trying to ensure that doctors do not simply short-circuit the exercise of their clinical judgment in pursuit solely of trying to identify the patient’s presumed wishes.  We would find that unacceptable (and indeed potentially negligent) in respect of a capacitous patient; it is not obvious why the incapacitous patient should not equally be required to benefit from the exercise of that clinical judgement.