Ed Madden, BL, looks at an English court case in which an NHS trust made an application to the High Court for an order that it was lawful and in the best interests of a patient in a vegetative state to withdraw active medical treatment.
In early 2011, D, a man in his early 50s, developed a swelling in his thyroid gland which it was thought might be malignant. He underwent an operation in May of that year, which was first thought to be successful. However, further tests showed that another operation was necessary and this was performed in July 2011. Unfortunately, it was found that the cancer had spread.
In the course of a further procedure, D had a cardiac arrest and suffered severe and irreparable brain damage. After extensive medical tests, it was concluded that he was in a vegetative state, with no prospect of recovery. It was agreed by all relevant parties, including his treating doctors and his family, that an application should be made to the courts for an order allowing the withdrawal of treatment.
On foot of that agreement, the NHS Trust responsible for D’s care made an application to the High Court for a declaration that it was lawful and in D’s best interests to withdraw active medical treatment, including specifically artificial nutrition and hydration, albeit that this would lead to his death.
When the matter came on for hearing earlier this year, the application was supported by the official solicitor acting on behalf of D.
The Court heard evidence that the patient was in a hospital bed and totally dependent for his every need upon the care of others. It had been established that while visual stimuli were reaching the central nervous system, D did not “track objects, respond to visual threat or explore his visual environment”.
He demonstrated no auditory awareness. Evidence was also given in relation to D’s response to painful stimuli and in relation to motor activity.
The Court was told that two special studies had been carried out to analyse observations of D on a continuous basis. The first of these was the Wessex Head Injury Matrix (WHIM) — a multi-user assessment that records the repeated observation of features associated with consciousness.
The second study involved the use of the Sensory Modality Assessment and Rehabilitation Technique (SMART) — an internationally recognised assessment, validated as a method of diagnosing levels of awareness and consciousness in a patient with profound brain damage.
The results of the two studies had been carefully considered, in particular by Prof Wade, who gave as his opinion that D was completely unaware of himself or his environment and that he would not recover.
The Court heard evidence that prior to the procedure that resulted in the cardiac arrest, D had authorised his sister-in-law in writing in the following terms:
“To whom it may concern: I authorise [his sister-in law’s name and address was included] to act on my behalf in the event of me being unable to make decisions for whatever reason. In particular, I authorise the above to liaise with the medical profession in making decisions regarding any further medical treatment. More specifically, I refuse any medical treatment of an invasive nature (including but not restrictive to placing a feeding tube in my stomach) if said procedure is only for the purpose of extending a reduced quality of life. By reduced quality of life, I mean one where my life would be one of a significantly reduced quality, with little or no hope of any meaningful recovery, where I would be in a nursing home/care home with little or no independence. Similarly, I would not want to be resuscitated if only to lead to a significantly reduced quality of life.”
D’s wishes could not be directly acted upon, as the document did not comply with the strict requirements of the Mental Capacity Act 2005 relating to advanced directives or living wills.
Giving his judgment in the case, Mr Justice Jackson said that D was a very private man before his incapacity “who would have been horrified at the prospect of being kept alive in this condition, with the total loss of privacy that his dependency entails”.
The evidence established that the available options were to continue with active medical treatment with a life expectancy of one or two years, or to withdraw active medical treatment, in which case he would die in about 10 to 14 days. The judge had no doubt that the latter option was the better one for D.
He said that D had received and would continue to receive “the most devoted nursing care”. His family and friends had spoken of him in the most loving way. They believed that he should be allowed to die with dignity and with as little suffering as possible. The judge agreed. D was in a vegetative state, with no prospect of recovery. In such circumstances the law permitted the withdrawal of treatment “because it is futile and achieves nothing for the patient”.
The Court, therefore, granted the declaration sought by the Trust.
Reference:  EWHC 885 (COP)