![David Lester (senior partner at Blythe Liggins), Darryl Barnes, Jagdeep Sandher (head of dispute resolution at Blythe Liggins)[4]](https://d1d8vslyhr7rdg.cloudfront.net/Pictures/274x183/4/2/8/116428_davidlesterseniorpartneratblytheligginsdarrylbarnesjagdeepsandherheadofdisputeresolutionatblytheliggins4_981603_crop.jpg)
Re P: Court of Protection: 26 June 2015 (Mr Justice Newton, pictured)
Court of Protection – Practice – Application to the court – Patient lacking capacity requiring life-saving treatment – Trust applying to withdraw treatment – Family opposing application – Whether patient in vegetative state
P was born in the mid 1970s with a dysplastic kidney which meant that one of his kidneys had not been properly formed. The family were aware that at some stage P would probably become unwell in the future but he was healthy until his thirties. In 2007, he became unwell and required treatment for kidney failure.
He began both dialysis and occasionally hemofiltration. In 2014, P suffered a major cardiac arrest. There was a period of 25 minutes between his arrest and spontaneous circulation being restored. He had by then suffered hypoxic brain damage such that he was left with a profound and prolonged disorder of consciousness. Since then he had been wholly dependant on the ICU (intensive care unit) for all aspects of his care.
On 20 January 2015, the health trust (the Trust) responsible for his care made an application seeking declarations as to whether it was lawful to continue to provide renal replacement therapy (RRT), the Trust wished to discontinue life-sustaining treatment with the inexorable and inevitable consequence that as a result P would quickly die. That was because P was considered at that point by the treating clinicians to be in a permanent vegetative state (VS).
The application was launched, before any SMART (standardised testing) had been undertaken. The family had consistently maintained their position that P was in a minimally conscious state (MCS) and that they had continued to witness purposeful responses from him. They strongly contended that the discontinuance of treatment would be against his personal (as well as his religious) views, and in any event not in his best interests. The unanimous clinical and expert opinion was that due to his severe brain injury P lacked capacity within the meanings of sections 2 and 3 of the Mental Capacity Act to make decisions regarding his medical treatment and litigation.
The main issue was whether P was in a VS, and whether there was no real prospect of recovery, or whether he was in a MCS, then the issue to be considered had be on the balance of best interests in accordance with section 4 MCA and the appropriate professional guidance, namely the MCA Code of Practice. A suggested balance sheet of matters arising from the evidence was provided namely, whether treatment was futile, how burdensome was treatment, whether there was any prospect of recovery, and the wishes, feelings values and beliefs of the patient.
The application would be allowed.
The court had reached the clear conclusion that the balance lay strongly in favour of preserving P’s life through the continued provision of RRT. On any view the treatment was not futile, it preserved his life and might do so for some years. P took pleasure and comfort from the love and affection that he received from his family and that was a continuing illustration not just of his conscious state but also of the importance of the continuation of such treatment.
The treatment was not overly burdensome. He did not appear to be in pain or discomfort. The treatment was not without a prospect of success and on the evidence the court regarded it as worthwhile in accordance with his previous beliefs and values and expressed views. Further there was almost nothing to rebut the very strong presumption that it was in P’s best interests to stay alive. The court ordered and directed that the renal replacement therapy should continue (see [44], [45] of the judgment).
Aintree University Hospitals NHS Foundation Trust v James [2013] All ER (D) 339 (Oct) applied.
Per curiam: ‘The Court of Protection was cautious when considering whether to permit cessation of life sustaining treatment, where the diagnosis is unclear and particularly when the protected party is in a minimally conscious state with real or uncertain prospects of recovery that caution is all the greater having regard to the sanctity of life. …..
‘Therefore in all cases where there is any question of doubt about diagnosis, in order to eliminate mistakes or potential tragedies it is essential that those assessments are carried out in good time so that the diagnosis is clear before the court, then the court can conduct its own enquiry and balance’ (see [46], [49] of the judgment).
Parishil Patel (instructed by Hempsons) for the Trust; Bridget Dolan (instructed by The Official Solicitor) for P; Vikram Sachdeva QC (instructed by Irwin Mitchell) for Q.
