Going to court too soon

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Mrs G collapsed in church with a subarachnoid haemorrhage followed by cardiac standstill. Resuscitation commenced between five and seven minutes later, but she sustained very extensive damage to her brain. There was no evidence that she was sentient. A vegetative state was diagnosed. Some six weeks later, neither her level of consciousness nor degree of responsiveness had improved. She remained intubated although required minimal ventilation.

Around this time, the hospital sought a court declaration that continued intubation was contrary to Mrs G’s best interests. On 14 February, less than eight weeks after her bleed, the judgement was handed down. The court found that her family believed that Mrs G responded both to the people who were close to her and to their prayers.

The judge thanked the family for information concerning Mrs G’s wishes, feelings, beliefs and values. This evidence comprised two threads. Firstly, that Mrs G would have wished to stay alive, whatever the personal cost, if her living presence provided comfort to family members. Secondly, that she had the ‘...utmost respect for life because of its intrinsic value and it was for no-one other than the Lord to take away’. The court found that her Catholic faith and belief in God remained a crucial part of her life. Summing up, the judge was satisfied that Mrs G’s wishes, feelings, beliefs and values were ‘...plainly for the continuance of life.’

An expert neurologist appointed jointly by the hospital and the patient’s representatives told the court that the best outcome Mrs G could hope for would be ‘... awareness of pain but nothing more than minimal consciousness at a very low level’. He said that her memory will ‘...almost certainly completely have disappeared and her previous personality will not emerge’. Nonetheless, the neurologist accepted that a tracheostomy could open avenues including specialist nursing care, perhaps within her own home, although she would be unaware of that fact.

The court found that personal dignity was not something writ large in Mrs G’s life or thoughts. In addition, that pain was not a significant consideration, since she was not sentient, and if it did emerge, it could be treated. The court was told that RCP guidance indicated that in cases that are not the result of trauma, six months should elapse before the vegetative state is regarded as permanent.

During his balance sheet exercise, the judge reasoned that removing the endotracheal tube would bring an end to a process that conferred no significant benefit to Mrs G, and excluded all possibility of pain and indignity. Against this was weighed continuation of Mrs G’s life, recognition of her wishes, enabling her life to end at the behest of her God, and the faint possibility of improvement, together with her ability (unwittingly) to continue playing a role in her family’s life. On this basis, the court refused the application, finding that continued intubation was in her interests.

But it was also made clear that should Mrs G remain in the same state for six months, a different decision might be made. Faced with the revelation of a Royal College guideline that in these clinical circumstances, six months should elapse before the diagnosis of permanence (of the vegetative state) could be made, it seems unlikely that a court would undermine that guidance by endorsing what amounted to a withdrawal of treatment less than two months after presentation.

The hospital’s case was contested by the family and the Official Solicitor (representing the patient). Despite the early severity of the injury, the wishes, feelings, beliefs and values attributed to the patient weighed heavily in favour of accepting the guidance at face value, and awaiting events. Whilst courts encourage early applications when inevitability looms, such as progression towards parturition, they are unlikely to agree to definitive action contrary to the parameters set by national guidance.

Robert Wheeler
Department of clinical law
October 2019