Public Law Newsletter: Nov 23
Guy’s and St Thomas’ NHS Foundation Trust v VA & Anor  EWCOP 39
This case concerns VA, a 78-year-old woman, who had suffered a significant hypoxic brain injury following multiple cardiac arrests [1-3]. Over the months that followed, VA showed no signs of recovery of cerebral function, a fact which was accepted by her family. There was however a disagreement as to the level of VA’s awareness; the Trust considered that VA was “at the lowest end of the spectrum of a profound disorder of consciousness” , whereas the family did not believe that VA’s awareness was as profoundly compromised as medical evidence suggested.
The Trust brought proceedings following a dispute with VA’s family about what was in her best interests. The application sought determination as to whether it was in VA’s best interests to undergo extubation and palliative care or to have a tracheostomy and PEG inserted . The Trust considered, at the time of the application, that both were equally valid options. They subsequently revised their view, on the basis that treatment of any kind would be futile and burdensome for VA.
Hayden J heard evidence from VA’s family. VA’s eldest daughter, MA, was of the view that “extubation and palliative care would be perceived, in her culture, as a family giving up on their mother”.
The Official Solicitor supported the Trust’s application, having heard all of the evidence.
This case helpfully sets out the law in the sphere of medical treatment decisions for incapacitated persons, noting that whilst the law is settled and relatively easy to state, the application of it is always intensely difficult “involving, as it invariably does, the intersection of ethics, medicine, the law and, not infrequently, religious belief”.
In particular, it sets out the court’s role where a patient lacks capacity to consent to medical treatment, noting that the focus is on “whether it is in the patient’s best interests to give the treatment, rather than whether it is in his best interests to withhold or withdraw it” (per Aintree v James  UKSC 67).
It further sets out that, whilst there is a powerful presumption in favour of approving life-sustaining treatment, this is not absolute.
Hayden J concluded that [46 – 47]:
“To justify continuing the invasive procedure of the tracheostomy, deep suctioning and PEG in circumstances where there can be no medical benefit and only physical burden, I would have to be satisfied that this is what Mrs VA would really have wanted. Even then, her wishes and feelings would not be determinative.
Mrs VA is dying. She has a chance of doing so in the relative privacy and peace of the ward, perhaps even in a nursing home. With luck her children may share that privacy with her. Within the narrow ambit of what can be done, this is a not insignificant change for her. Extubation, palliative care focusing on giving Mrs VA the best quality of life, at the end of her life, is, I find, what is in her best interests.”
In the circumstances, Hayden J granted the declaration sought by the Trust.
Norfolk and Norwich University Hospitals NHS Foundation Trust & Ors v Tooke  EWCOP 45
This case concerned Jordan Tooke, a 29-year-old man with a diagnosis of autism, severe learning disabilities and William’s syndrome. In the 12 months prior to the hearing, Jordan had been diagnosed with chronic kidney disease, and had entered end-stage renal failure. Without haemodialysis treatment, his condition would be fatal.
Jordan had a long-standing phobia of hospitals in general, and needles in particular, as a result of which, he would be unlikely to be able to tolerate haemodialysis treatment without sedation.
The application was brought by the Trust for determination of whether it was in Jordan’s best interests to undergo haemodialysis under sedation. The Trust’s position was that haemodialysis under sedation would be risky and potentially distressing, and was not in Jordan’s best interests. They favoured the “predictable and controlled” option of palliative care. Jordan’s parents, on the other hand, considered it in Jordan’s best interests to receive treatment.
Jordan’s parents’ position was supported by the Official Solicitor on behalf of Jordan.
Hayden J’s judgment paints a clear picture of Jordan’s personality and values, describing him as having “almost universally irresistible charm”, and as having an “irrepressible sense of fun”, a “zest for life”, and an “enthusiasm for the world” which is “striking and voracious”.
Hayden J noted that this case was essentially about life-sustaining treatment, and in particular, whether it would be lawful, right and in Jordan’s best interests to receive haemodialysis even where that can only be achieved by the unusual measure of intravenous sedation throughout the process.
This case helpfully sets out the law in respect of the weight to be given to expert evidence, and the need to consider that expert evidence in the context of all the other evidence, including consideration of “welfare in the wider sense, not just medical but social and psychological” (per Aintree v James  UKSC 67).
Hayden J noted that, when considering best interests, the court must weigh into the balance the person’s unique value as a human being, the obligation of the State to ensure that he is afforded the same opportunities as those who do not share his disabilities and his fundamental right to life where that can either be achieved or, where it can be strenuously promoted”.
The judge stated that there was “no doubt that the sedation plan carries significant and troubling risks”, some of which “involve potentially very serious consequences” . He concluded the following: “The real issue is whether the process of dialysis with all its attendant risks is so contrary to Jordan’s best interests that it should not be pursued. Having regard to Dr M’s clear view that Jordan’s sedation can be managed, I have come to the view that the opportunity of dialysis ought to be afforded to Jordan and that such opportunity can properly be said to be in his best interests.” .
Jordan’s parents asked the court to lift the reporting restrictions preventing Jordan from being named, in order to promote the importance of the rights of people with disabilities, as well as for the two more practical objectives of identifying an “altruistic donor” to donate Jordan a live kidney, and to hunt down specialist clothing for Jordan which might help in the dialysis process .
Re H (An Adult; Termination)  EWCOP 183
This case concerned Ms H, a 26-year-old woman with a diagnosis of Schizoaffective disorder, who was detained under section 3 of the Mental Health Act 1983. Ms H was pregnant, and with one exception, she had been consistent in her wish to have a termination.
The Trust brought this application for determination by the court of i. whether Ms H has capacity to make a decision to consent to terminate her pregnancy; ii. if she lacks capacity in respect of this matter, whether a termination is in her best interests or not; and iii. if a termination is in her best interests, whether this should be carried out by a medical or surgical procedure.
It was established that the test under section 1(a) of the Abortion Act 1967 was met (i.e. two registered medical practitioners had in good faith formed the opinion that the pregnancy had not exceeded its 24th week, and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to Ms H’s mental health).
It was agreed as between the parties before the court that Ms H lacked capacity in this domain, and that it was in her best interests to have a termination. The more difficult question was whether the termination should be carried out medically or surgically. Ms H’s strong wish was to have a medical termination.
In terms of capacity, the judge endorsed the decision of HHJ Hilder in S v Birmingham Woman’s and Children’s NHS Trust  EWCOP 10 as to the relevant information for the purposes of a decision to terminate a pregnancy. Further, the judge distinguished Re SB (A Patient: Capacity to Consent to Termination)  EWHC 1471 (COP) (a case where a pregnant woman experiencing paranoid thoughts was found to have capacity to decide whether to terminate her pregnancy).
Turning to best interests, the judge helpfully set out the dicta of Lady Hale in Aintree v James  UKSC 67, as well as the dicta of Munby J in Re X (A Child)  EWHC 1871 (Fam) (a case which considered whether it was in a child’s best interests to terminate her pregnancy).
The judge, “applying significant weight to Ms H’s wishes and feelings and the clear medical evidence which points to the significant harm to her mental health, and in the context of manageable risks to her physical health of what is often a routine medical procedure”, held that a termination was in Ms H’s best interests.
Noting the “powerful role” in the best interests analysis of Ms H’s strong wish not to have a surgical termination, the judge held that it would be in her best interests to have a medical termination. In particular, the judge noted that “whilst I have found her to lack capacity to make this decision and I have found her to have false and delusional beliefs, the termination of her pregnancy remains a profoundly personal one for her. It may not matter very much to her whether the foetus is alive or dead, whether it is one foetus or twins or whether the conception was a result of rape. She has a visceral desire to be free from her pregnancy and she has elaborated consistently and clearly her firm desire for a medical termination and opposition to a surgical termination.”
The judge authorised the use of covert medication, but was prepared to authorise restraint only in very limited circumstances, once the medical termination had begun and where it was necessary to protect Ms H’s safety to carry out a vaginal examination.