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:
32. When considering what is in HB’s best interests, I take account of the fact that the balance of medical evidence would support the view that the treatment set out in the second part of the treatment plan would bring about no significant improvement in HB’s underlying condition and, to that end, they might be seen as futile. I accept that those treatments set out in part 2 of the treatment plan numbers (1) to (6) would be burdensome treatments for her to receive because they are either invasive or, in the case of cardiopulmonary resuscitation, it is a violent treatment.
33. Against that, I have to balance the very clear wishes, expressed by HB to her daughter, that she would want all steps taken to preserve her life and, as Professor of Critical Care Medicine mentioned at the best interests meeting, even if that meant that further continued physical incapacity, or indeed a lack of mental capacity.
34. I am satisfied, within the meaning of the 2005 Act, that HB does not have the capacity to make decisions about her medical treatment. I accept that the quality of the care given by the Trust staff, both clinicians and nursing staff, has been of an excellent quality. I accept that the Trust, the clinical team, have taken all proper steps in their analysis of HB’s needs and, indeed, seeking second opinions from Professor of Intensive Care Medical and Professor of Neurology. However, I accept the evidence of Dr Danbury that it is too early at this stage, just six weeks and two days post the cardiac arrest, to be clear as to whether HB will achieve any improvement in her neurological condition or not.
35. Where it is not clear whether HB will make an improvement in her neurological condition, it is, in my judgment, contrary to her best interests and premature to rule out the treatments set out in Part 2 of the updated treatment plan, numbers (2) to (6). In relation to number (1), that is cardiopulmonary resuscitation, this, Mr McKendrick QC tells me on behalf of the Trust, is the particular treatment that causes most concern to the medical staff. I have carefully reflected and considered whether it would be in her best interests for her not to receive CPR should she suffer a collapse or further cardiac arrest. Mr McKendrick submits that it would not be in HB’s best interests that the potentially last moments of her life were lived with her undergoing the violent and invasive procedures necessary in providing CPR, that it would be a traumatic scene for her children to witness in her final moments.
36. I entirely accept those submissions and the force in them, but key to the decision must be the wishes and feelings of HB and it is plain that administering CPR in the event of a further collapse and giving her, albeit a very, very small chance of life, is what she would wish. In my judgment, at the moment, it remains in her best interests for that treatment to be provided to her. I entirely accept that there will undoubtedly come a time when such treatments would no longer be in her best interests but I am entirely satisfied that that stage has not been reached yet.
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 tobe 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.
4 Note, this decision was reached in October 2018, but did not appear on Bailii until February 2019.
Ed. As ever, I would like to express my thanks and gratitude to specialist barristers:
Alex Ruck Keene
Simon Edwards (P&A)
for their kind permission to reproduce the case summaries above which first appeared in Mental Capacity Law Newsletter, March 2019, published by 39 Essex Chambers.