Tracheostomy as short-term palliation

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.

The NHS Foundation Trust & K [2023] EWCOP 57

There are times when the options for the treatment of an incapacitated patient are so stark and so bleak that it becomes impossible for their family to assist the clinicians when a choice must be made.

Thus it was in the case of K, a much-loved young person who until recent events had been living at home. At an early stage in the proceedings, the judge found as a fact that ‘…there is no dispute in this case that K lacks capacity or that she will ever gain it’. K had inherited a progressive (and progressing) neuro-degenerative condition; two of her siblings had died of the same disease as teenagers. In the Spring of 2023, K’s recurrent pneumonias had led to intubation and ventilation; a situation maintained at the time of the court hearing in December. There had been at least one cardiac arrest, following accidental self-extubation. Her doctors believed that continuing with this treatment was contrary to her interests, and that palliative care should commence. K’s sister, B, who had already endured an enormous burden of grief and tragedy, had ‘full faith’ that her sister would recover. The court found that there was ‘…no doubt at all that the overwhelming wish of the family, as so movingly expressed by B, is for K to live’.

The judge heard evidence from doctors on behalf of the hospital, and on behalf of the Official Solicitor who was appointed by the court to represent K, given her incapacity.

Initially, three treatment options were put to the court, namely (i) continuing to ventilate on intensive care via oral intubation; (ii) extubation with no intention further to intubate, whilst continuing active suction, physiotherapy, and antibiotics; or (iii) ventilation through a tracheostomy. The latter option was not supported by either the treating team, or by the doctor giving evidence on behalf of the Official Solicitor.

After further discussion in court, the Trust made it clear that it would not be prepared to offer the first option of continuing with the status quo. The court has no power to order doctors to act in a manner that is contrary to P’s best interests. Therefore, only the options of final extubation or ventilation via a tracheostomy remained. The treating team expressed great concern over the possibility of tracheostomy; not least because of K’s previous repeated efforts to remove her existing endotracheal tube (and thus the risks of immediate loss of her airway). In practice, maintaining a tracheostomy would necessitate enduring sedation or physical restraint. Deep suctioning would be required thrice daily, and it had already been demonstrated how distressing K found this therapy to be. The court was told that the clinicians ‘…could not envisage sedation being taken away to the point that K (whilst intubated in any manner) can have any quality of life without getting distressed…by all the interventions and therapies…’.

Summing up, the judge pondered on the family’s position with anxious sympathy. She concluded that the ‘…views of the family are not at all straightforward because they are predicated on the tragically false belief that K can recover’. The judge considered the benefits remaining to K; ‘ I bear in mind that many people would be prepared to tolerate some level of distress, pain and discomfort in order to spend some precious time with loved ones before dying’.

In finding that tracheostomy was not in K’s best interests, the court noted that in any event, ‘… K would succumb to an overwhelming infection within a few months… ’ Accordingly, an order was made that palliative care and extubation was lawful, and in K’s best interests.

Mr Robert Wheeler
Department of clinical law