An NHS Trust v L & Ors (Rev 1)

MR JUSTICE MOYLAN: Before starting my judgment I need to draw attention to the existence of a Reporting Restriction Order, which was made by Ryder J on 14 August 2012. That order remains in force and restricts what information can be published about these proceedings, including this judgment. Before anyone publishes any information they should look at the terms of that order to ensure that their proposed publication complies with its terms.

By application made on 6 August 2012 an NHS Trust seeks a declaration that in the event of a patient, called “Mr L” for the purposes of these proceedings, suffering a cardiac arrest and/or a respiratory arrest and/or other serious deterioration in his condition, it would not be in his best interests for active resuscitation and/or other similar treatment to be provided.

The application is made under the Mental Capacity Act 2005 because it is agreed that Mr L lacks the capacity to make decisions as to his future treatment. As a result of a previous cardiac arrest, Mr L’s neurological condition is such that he has no capacity to be involved at any level in the making of such decisions.

The parties to the proceedings are the Trust, represented by Ms Watson; Mrs L, represented by Ms Richards QC and Ms Grange; two of Mr L’s children who are not separately represented, but who have effectively had their cases conveyed through Ms Richards and Ms Grange; and Mr L himself acting through the Official Solicitor, represented by Mr Sachdeva.

Simply expressed, the Trust contends that it is not in Mr L’s best interests for the treatment I have described (in broad terms) to be undertaken in the event of a significant deterioration in his condition, including in the event of a cardio-respiratory arrest. The family’s position can be summarised as being that all possible treatment should be provided in the event of such a deterioration. The Official Solicitor supports the making of the declarations sought by the Trust as being in Mr L’s best interests.

For the purpose of these proceedings I have been provided with a great deal of evidence, both written and oral. This has included evidence from Mrs L; one of Mr L’s sons who I will call “Mr F L”; clinicians responsible for treating Mr L at the Trust; clinicians from other Trusts or hospitals requested by the Trust to provide a second opinion; and from two medical experts, instructed specifically for the purpose of these proceedings, namely, Dr Bell, a Consultant in Intensive Care and Anaesthesia and Dr Newman, a Consultant Neurologist. Much of the medical evidence is stark in its nature. I appreciate that it will be hard for the family to hear but in order to explain my decision it is necessary for me to set this out in some detail.

The hearing of the application started before me on 20 August 2012. A significant part of that hearing was taken up with evidence addressing the issue of whether Mr L was in a vegetative state or a minimally conscious state. The family was, understandably, particularly concerned to ensure that the correct diagnosis was made, especially in circumstances where they considered, as they still do, that they are seeing more signs of awareness and responsiveness than that seen by the experts instructed in this case or the treating staff at the hospital.

Partly because of the volume of the evidence which the parties sought to adduce and partly because of evidential developments concerning the issue of the level of Mr L’s awareness, the case had to be adjourned after several days of evidence. I made an interim declaration and gave a short judgment. The adjourned hearing commenced before me on 1 October. I heard further oral evidence and submissions. The hearing concluded on Wednesday. I was not then able to give my substantive judgment until today.

Mr L is aged 55. He and his wife have been married for over 40 years. They have eight children and are clearly a very close family. As described in Mrs L’s Affidavit, Mr L has suffered from a number of medical conditions for many years. These include, to quote from the medical evidence:

On 7 March 2012 Mr L was admitted as an emergency to hospital - “unconscious and in extremis with respiratory failure”. He had one or possibly more cardiac arrests. He was successfully resuscitated without any apparent neurological damage. He spent one month in the intensive care unit and was discharged from hospital on 5 May 2012. During his admission in hospital Mr L was also found to have a pituitary tumour. Other changes were noted on X-rays which resemble either TB or a malignancy, but the tests have been inconclusive.

On 8 July 2012 Mr L was again admitted to hospital with chest pain and vomiting. He was discharged on 11 July 2012. As described in the statement from Mr L’s son, Mr L remained extremely unwell - he was vomiting profusely, was cold, clammy and had swollen feet and chest pains. He could not walk unaided, was very weak and gasping for air. The family called an ambulance and Mr L was readmitted to hospital in the evening on 11 July.

On 14 July Mr L suffered a further cardiac arrest. The severity of this arrest was significantly greater than his previous arrest or arrests. Although he was successfully resuscitated, this was only after a protracted period of hypoxia or hypotension or both. He required five cycles of resuscitation to restore spontaneous circulation. As a consequence Mr L sustained severe brain damage. This was described by Dr Bell during his oral evidence as a profound hypoxic injury, exaggerated by hypoglycaemia. This severe damage has occurred in the higher centres of the brain, which, to quote from the evidence, provide the ability to have a conscious existence.

Mr L was until recently a patient in the high dependency unit at the hospital. He has now moved to a stroke ward.

On 16 July 2012 a “Do Not Attempt Resuscitation” notice was put on Mr L’s medical notes. This was done without any prior consultation with the family, in breach of the Trust’s own policy, which provides that:

During the course of oral evidence a consultant from the Trust apologised for this, accepting that the proper procedures had not been followed, and frankly accepting that what had happened was, “grossly wrong”. He also apologised for the fact that no member of Mr L’s family had been asked by any member of the treating staff to participate in any assessment of Mr L’s level of awareness.

The DNAR notice was not removed until 17 July, and the family has made a formal complaint about this and other matters.

I have been invited by Ms Grange to address these failings in this judgment, in, as she put it, the wider public interest. She also invites me to deal with the view apparently expressed by some of the treating clinicians that the decision that had been made was purely a medical one. Other than record what I have just set out in this judgment, I do not propose to accept her invitation to comment further. I do not do so because in my view the Guidance provided by the General Medical Council and Joint Guidelines, to which I refer to later in this judgment, provide extensive and detailed assistance on these issues. It is unnecessary for me to provide further comment, save to make the obvious point that the Guidance and Guidelines need to be properly disseminated and hospital staff need to be aware of their Trust’s own guidance and policies. I accept that the family feels very strongly about these issues and that they may well, at least in part, provide some explanation for the course this case has taken. However, as I have said, I do not consider that any further comment by me is necessary or indeed appropriate in the broader public interest.

Returning to the medical chronology, Mr L was seen by a consultant neurologist from another NHS Trust on 19 July. A CT scan of Mr L’s brain and an EEG were preformed on 23 July. The same consultant neurologist saw Mr L again on 26 July. In his opinion the CT scan showed changes representative of significant hypoxic-ischaemic injury with loss of the grey matter/white matter boundaries. The EEG showed changes representative of severe bi-hemispheric cortical injury. The neurologist spoke with the family. He explained that Mr L had sustained a significant brain injury, but that because his brainstem functions were largely intact, this would explain why he opened his eyes spontaneously and why he was breathing for himself. To quote from the consultant’s statement, provided for these proceedings:

A further EEG recording of 27 July 2012 demonstrated: “non-reactive diffuse slowing of the background electrical rhythm.” This was interpreted by a consultant neurophysiologist as a “severely abnormal EEG” which carries “an extremely poor prognosis for functional neurological recovery.”

A further CT scan was carried out on 10 August 2012. This demonstrated involutional change or atrophy of the brain as compared with the CT scan on 23 July. This is described by Dr Bell as compatible with the defined global cortical insult sustained by Mr L.

A disagreement developed between the Trust and the family as the Trust indicated that if Mr L suffered a further cardiac or respiratory arrest or other serious deterioration they would not propose undertaking active resuscitation and/or ventilation. As a result the application which I am determining was made by the Trust to the Court of Protection under the Mental Capacity Act 2005.

With the Trust’s application was served, as required, an assessment of capacity completed by a consultant in intensive care. His conclusion was that Mr L was in a vegetative state, that he had sustained a severe brain injury which would not significantly improve and that there was no chance of Mr L recovering sufficiently to acquire capacity.

In support of the application, the Trust filed statements from a Consultant in Anaesthesia and Critical Care at the Trust. In his opinion Mr L has a very poor prognosis. He refers to the fact that a lack of mobility particularly puts Mr L at risk of respiratory complications, such as chest infections or blockages or the lower airways. To quote from one of his statements, prepared for the purposes of these proceedings:

In his opinion, Mr L has less than a 1 per cent chance of any meaningful recovery and will remain profoundly neurologically and physically impaired. The Consultant adds that, because of Mr L’s condition, he is prone to urinary infections, skin infections and pneumonia. He summarises the rationale behind the proposed treatment and care plan as follows:

In his second statement the Consultant forcefully expresses his and his medical colleagues’ opinion in stark terms by saying that “unnaturally” prolonging Mr L’s life by invasive ventilation or resuscitation would “seem cruel to all the medical professionals I have ever worked with”.

The Consultant who provided these statements was not available to give evidence during the first part of this hearing. Accordingly, I heard oral evidence from another Consultant Anaesthetist and Intensivist, called Dr S. He has also been involved in treating Mr L. He said that he had seen no purposeful movements or responses by Mr L and that he was not aware of any member of staff having elicited purposeful responses. In his opinion Mr L’s prognosis, in terms of recovery, was “extremely bleak”.

Dr S was asked what the likely consequences would be for Mr L of a further cardio-respiratory arrest which required resuscitation or ventilation. He explained that even in patients with good reserves the outcomes from an arrest is poor. Given Mr L’s medical history, especially that he has had two cardiac arrests and has significant brain injury, his prospects are even worse. He would expect Mr L’s condition to deteriorate, describing it as being “very optimistic” to expect Mr L, following such an episode, to get back to his current state. Indeed, Dr S went so far as to say that to treat Mr L with active resuscitation or ventilation would, even if successful, be merely prolonging his death and, in his view, robbing him of his dignity as a human being.

Dr S was asked, in the event the court took a different view to that of the treating clinicians, how the treating team would proceed in terms of treatment and care. He replied that they would respect the court’s decision but that it would raise questions about the practice of intensive care in the whole country. He was asked again by Ms Richards whether the Trust would implement the court’s decision if it was that resuscitation or other similar treatment was in Mr L’s best interest. He said yes, but then added by way of clarification, and I would add evident concern, that if this were to happen, irrespective of the medical consensus, then doctors would feel that they were not able to do the best for their patients.

During the hearing there was some debate as to whether the effect of Dr S’s evidence was that, if the court’s decision effectively required the provision of CPR and/or ventilation, this would be to require the treating clinicians to provide treatment which was contrary to their clinical judgment. I have no doubt that Dr S raised the concerns which he did, about the potential impact on the practice of intensive care and by the use of the phrase “irrespective of the medical consensus”, because he could see the clear risk that any obligation to provide such treatment would, or at the very least could, be to require clinicians to act contrary to their clinical judgment, something which they cannot be required to do. I return to this issue later in this judgment.

For the adjourned hearing the Trust filed a statement from Dr J, the Consultant General Physician who is currently responsible for Mr L’s care, having assumed this responsibility following Mr L’s transfer to the stroke ward on 21 September. He also gave oral evidence. In a change to the previous position advanced on behalf of the Trust, he states that Mr L is in a minimally conscious state, but at the lower end of the spectrum. It is Dr J’s opinion that, whilst there might be some minor improvements in Mr L’s neurological condition in the future, they are highly unlikely to be significant. He also said that Mr L is susceptible to developing complications, the most likely of which are chest infections. In addition, Dr J refers to Mr L’s considerable co-morbidities, which have an adverse impact on his prognosis.

It is Dr J’s opinion, which, he says, is supported by numerous other physicians and intensivists who are very experienced in the outcomes for patients in Mr L’s position, that in the event of Mr L becoming critically ill it is not in his best interests to be resuscitated and/or ventilated. This is because he considers that Mr L is highly unlikely to survive such an episode and, even if he does survive, he is likely to suffer further brain damage. Mr L’s brain is already severely compromised and he has no reserves if he loses further brain cells. It is the opinion of Dr J and his colleagues that Mr L will not benefit from such treatment, which would only serve to increase his suffering and to prolong the dying process. Mr L’s body is so frail that he has no reasonable chance of recovering from such an episode.

Dr J expressed the firm opinion that to provide such treatment would not be medically appropriate and would conflict with the principle of “do no harm”. He concluded by raising a specific concern that he and his colleagues share, namely that the clinicians involved in Mr L’s care feel they are being placed under a large degree of pressure to treat and manage Mr L in a way which is not compatible with their professional and clinical judgment.

I do not propose in this judgment to refer to other evidence which has been filed on behalf of the Trust, but I have taken it into account when determining the application.

Dr Bell, a Consultant in Intensive Care and Anaesthesia has prepared reports dated 13 August and 29 September, and has given oral evidence during both parts of this hearing. In his first report Dr Bell was instructed to provide his expert opinion on the following:

Dealing first with Dr Bell’s evidence as to Mr L’s state of awareness. At the hearing in August it was Dr Bell’s opinion that Mr L was in a vegetative state. He saw no evidence of reproducible responses. He saw no evidence of Mr L processing information and responding with any reproducible eye or motor activity or of demonstrating any signs of environmental awareness. In addition Dr Bell considered that Mr L’s neurological status was compatible with:

Dr Bell considered that the prospects of Mr L progressing to a minimally conscious state were very low. He also expressed the opinion that it was, “unrealistic to expect any further neurological recovery” which would take Mr L beyond the minimally conscious state. When asked by Ms Richards, Dr Bell said that the prospects of this occurring, on the assumption that Mr L was in a minimally conscious state, were approximately 1 in 1000. This was, again, based on the nature and magnitude of the brain injury, described by Dr Bell as a “devastating neurological injury”; on the clinical picture; on the changes shown in the CT scans and the EEG findings. In addition, Dr Bell said that Mr L will predictably continue to lose brain tissue with progressive shrinking over time.

At the adjourned hearing, Dr Bell was of the opinion that Mr L was somewhere on the spectrum of profound neurological disability between a vegetative and a minimally conscious state. If he is in the latter state, then it is Dr Bell’s opinion that it is at an extremely low level of responsiveness. Giving his overview assessment, Dr Bell added that Mr L appears to be irritated or disturbed or distressed by some contact and interventions. Further, given Mr L’s likely neurological condition, whist he may be able to experience pain and discomfort, he would not be able to express an opinion and would not be able to comprehend the therapeutic effect.

Dr Bell also refers to Mr L’s pre-existing health problems, his co-morbidities, such as right heart dysfunction, ischaemic heart disease, hypertension and diabetes. These could:

Dr Bell’s evidence addresses the potential consequences and outcomes in the event that Mr L’s health deteriorates to the point where he requires resuscitation or other similar treatment.

Having regard to the very low rates of success of CPR generally, Dr Bell is of the opinion that in Mr L’s case such treatment is highly likely to be, what he described as, physiologically futile. In other words, that it would not, to put it starkly, stop Mr L from dying. It is likely to be unsuccessful because of Mr L’s physical and neurological condition and his underlying co-morbidities. Accordingly, if Mr L deteriorated in a manner which did not respond to other treatment and to the extent that he required resuscitation, then this would be highly likely not to be effective.

Dr Bell additionally points to what he describes as the “acknowledged harms of resuscitation and intensive care including fractured ribs and damage to internal organs”. He quotes from the General Medical Council’s 2010 guidance, “Treatment and Care Towards the End of Life”, which refers to the invasive nature of CPR interventions and states that:

Dr Bell says that this is equally applicable to the provision of invasive cardio-respiratory support in a critical care environment. Additionally, even if spontaneous circulation did re-start, Dr Bell considers it highly likely, at one point he said “inevitable”, that Mr L’s systemic condition would deteriorate, including with the further loss of myocardial reserves. Given Mr L’s various and significant other health problems, the degree of multi-organ dysfunction (as he described it), Dr Bell said that Mr L will predictably deteriorate physically in the event of a further cardio-respiratory arrest.

In respect of the brain, Dr Bell again referred to the magnitude of the hypoxic insult which Mr L has already suffered. In his opinion Mr L has lost those parts of the brain responsible for higher function. He described the other parts of the brain as being more resilient to hypoxic injury. However, if there are areas of the brain responsible for higher function which have only been partially destroyed or which are making new or re-establishing connections, these would be “exquisitely sensitive to any new addition insult” and, accordingly, further damage. In Dr Bell’s opinion there would be a “high predictability” of further deterioration in Mr L’s neurological condition.

Accordingly, Dr Bell opposes the contested interventions when they would have the predictable outcome, even if physiological function of the heart was restored, of general physical and neurological deterioration and would expose Mr L to pain, distress and discomfort, especially if his level of awareness increases. They would result in, as Dr Bell described it, Mr L’s death being characterised by a series of harmful interventions.

Dr Bell made clear in his evidence that he considers his opinion on the provision of CPR and analogous treatment reflects the “predictable response that one would expect if such a request was made to a critical care practitioner in this country”. This evidence ties in with the significant concerns he raised that medical practitioners should not be required to undertake treatment known to cause pain, discomfort and harm when “it is clear that the objectives or goals of that treatment are not achievable”. To do so would conflict with a health professional’s duty to protect a patient from pain and suffering and not to expose a patient to pain, discomfort or distress from treatment without there being a realistic prospect of benefit.

Turning now to Dr Newman’s evidence. Dr Newman has examined Mr L on two occasions, in August and in September. He has spoken to treating staff at the Trust and he has also spoken to Mr L’s family. The family members were present when he examined Mr L.

When he prepared his first report it was Dr Newman’s opinion that Mr L was in a vegetative state. He referred to the results of a Multi-Society Task Force evaluation of 159 patients who were in a vegetative state one month after non-traumatic brain injury. Of those only 15 per cent had recovered consciousness at the end of one year and only one had made what is called “a good recovery”. Dr Newman considered that there was a small chance of Mr L recovering some further neurological function, but that he would remain severely incapacitated, both physically and neurologically.

As with Dr Bell, Dr Newman did not recommend any further investigation or treatment to identify any underlying treatable cause for Mr L’s condition because, “the CT brain scans have excluded any such possibility”. Dr Newman recorded Dr R’s views and stated that he did not disagree with any of them, including specifically that resuscitation manoeuvres should not be undertaken.

Dr Newman’s second report followed his providing a further oral opinion on 23 August 2012. He was shown some video images of Mr L which had been taken by Mr L’s family. Having seen these images Dr Newman said:

Dr Newman’s third report followed a further examination of Mr L and further discussions with treating staff and family. In this report Dr Newman concludes that the video images he has seen provide a suggestion of purposeful behaviour. This is one of the four criteria or behaviours which are commonly used to determine whether a person is in a minimally conscious state. In his oral evidence Dr Newman said that, in his opinion, Mr L is in a minimally conscious state at the lower range of the spectrum because he has shown some sentient responsiveness to environmental stimuli, as shown in the further videos taken by the family. He agrees that it would not yet be appropriate to undertake any formal assessment, such as a SMART assessment, because it is too early for such an assessment to be properly conducted.

Dr Newman says that a confident prognosis cannot currently be given in that it is too soon to know to where on the minimally conscious state spectrum Mr L will or might progress. However, it is his clear opinion that:

As with Dr Bell, Dr Newman also referred to Mr L’s co-morbidities and the damage which Mr L’s brain has already sustained. In his view another episode of cardio-respiratory arrest would “inevitably” cause further brain damage, and Mr L would “most likely” develop multi-organ failure. In respect of Mr L’s neurological functioning, Dr Newman said, expressing it broadly, that Mr L’s brain could not be expected to recovery sufficiently to permit satisfactory functioning.

When considering the issue of treatment, Dr Newman said that, in order to justify embarking on a medical procedure, there needs to be an expectation that it will be successful because if not it would be futile to embark on it. In this case, it is highly unlikely, if Mr L suffers a further cardio-respiratory arrest and resuscitation attempts were successful, that he would other than remain in the intensive care unit until he died. Indeed, Dr Newman said that the outcome of a third cardiac arrest can be anticipated to be so “disastrous” that Mr L should not be treated by embarking on resuscitation.

In these circumstances, Dr Newman said that there is unlikely to be any clinician who would make a different decision to that made by the clinicians at the Trust, namely that resuscitation and other similar manoeuvres should not be attempted.

Turning now to the evidence from the family. Mr L’s family have provided a number of written statements. I have also heard all oral evidence from Mrs L and Mr F L. Mrs L’s statements are dated 10 August and 17 September and Mr F L’s statements are dated 10 August, 22 August and 17 September. They describe a clearly very close and loving family and a loving and caring husband and father. The commitment they have shown to Mr L and to obtaining evidence for these proceedings provide a very good insight into the close and loving nature of the family.

A considerable focus of Mr L’s family has been to seek to persuade the treating clinicians and the experts instructed in this case that Mr L’s level of awareness has been higher than they have diagnosed. At the first hearing, they produced evidence including further video images during the hearing which they said undermined the diagnosis that Mr L was in a vegetative state. As referred to earlier in this judgment, these endeavours have indeed led to a change in the diagnosis, in particular by Dr Newman. The family have continued to provide examples of responses and awareness which, they contend, show Mr L is continuing to improve. I do not propose to set out all the details of this evidence in this judgment but I have read all the statements and seen all the videos produced with the statement of 17 September and I have taken all this evidence into account when determining this application.

In her statement, Mrs L says that Mr L is a deeply religious man who spoke of desiring a “good death in line with his faith”. The family are Muslims. She and the family believe that everything should be done to maintain Mr L’s life. The family are confident that if Mr L could express himself now, he would want to be given all possible treatment which would or might prolong his life. In her oral evidence, when Mrs L was asked what was important to her husband, she said that his family comes first. She also said that she is seeking the court’s assistance to help Mr L to live for as long as possible. In her second statement, Mrs L says that since the last hearing she has seen a great difference in Mr L. She describes how, in her view, he responded positively to some contact whilst responding negatively to other. He appears to like it when his arms and shoulders are massaged but does not like it when his face is being touched, for example, flinching away when his eyes are cleaned.

Mr FL also describes his father as a deeply religious man who believes strongly that life should be prolonged as much as possible. He gives the example of the steps taken by their family to obtain treatment for his paternal grandfather. When the local hospital said that nothing more could be done, the family arranged for the grandfather to go to a more advanced hospital to receive treatment. He also recalls his father telling him that life should be prolonged and not to give up. In his oral evidence, Mr FL described the responses he believes have been elicited from his father by family members to the spoken word, to the smell of a perfume and to physical touch. He has added to these in his further written statements and expresses the family’s assessment, as I have indicated, that Mr L is continuing to improve. As with Mrs L, Mr FL describes how his father appears very sensitive to being touched on his head, face and shoulders and does not like his eyes being touched.

The family have also produced, as I have said, a number of short videos of Mr L which they have taken of him in hospital. I have watched these and can well understand why the family believe that they show at times a level of awareness and responsiveness to verbal and other stimuli.

From a religious perspective and more generally, the family believe that all attempts should be made to prolong Mr L’s life. They also state, as I have indicated, that this would accord with Mr L’s own wishes and beliefs. They hold this view so strongly that it is regardless of the likely neurological and physical consequences and regardless of any suffering which might result. Any chance is, in their view, worth taking.

The family also rely on a statement from an Islamic instructor or teacher. He refers to a consensus among all the various doctrinal and jurisprudential schools in Islam that there is an obligation to provide medical treatment when it is known that such treatment has a “proven track record of saving life”. There was some debate during the course of the hearing as to the effect of this statement as a whole. In my view, it is not necessary for me to resolve this debate because it is clear that the family want and believe that all treatment should be provided regardless of the likely consequences of that treatment and because the fundamental principle of the sanctity of life is a principle well established in our jurisprudence.

However, if it were necessary for me to decide whether the family’s position in respect of all treatment is supported by the statement from the religious instructor, I would conclude that it is not. For example, the statement refers to treatment which is known to be highly likely to preserve life and treatment which is known or believed to be “very likely to be of benefit”.

Turning now to some of the guidance to which I have been referred. I have been referred to a number of publications including the General Medical Council’s 2010 guidance entitled “Treatment and care towards the end of life” and the 2007 guidelines entitled “Decisions relating to cardiopulmonary resuscitation” published jointly by the BMA, the Royal College of Nursing and the Resuscitation Council (UK).

The former guidance makes clear that doctors cannot be required to provide treatment which they do not consider to be clinically appropriate. It also makes clear that doctors must consult:

In respect of CPR, the guidance refers to the nature of CPR:

The joint guidelines address general principles. One is that, where CPR may be successful in restarting the heart and maintaining breathing for a sustained period and the patient lacks capacity, discussion with:

the likely clinical outcome, including the likelihood of successfully re-starting the patient’s heart and breathing for a sustained period, and the level of recovery that can realistically be expected after successful CPR

the patient’s known or ascertainable wishes, including information about previously expressed views, feelings, beliefs and values

the patient’s human rights, including the right to life and the right to be free from degrading treatment

the likelihood of the patient experiencing severe unmanageable pain or suffering

the level of awareness the patient has of their existence and surroundings.”

I will first address the Mental Capacity Act 2005, which governs this application, and some of the authorities to which I have been referred. Section 1(5) provides:

It can be seen that the best interests determination is a very broad one requiring consideration of all relevant circumstances which mirrors the approach taken by the courts before the introduction of the 2005 Act. It is self-evident that if the court is being asked to exercise its powers under the Act, it is the court which has the duty to determine what is in the patient’s best interests by weighing in the balance all the relevant circumstances as established by the evidence. This exercise is additionally informed by a number of general principles.

It is well-established as stated by Lord Goff in Airedale NHS Trust v Bland[1993] AC 789 at page 863:

The next decision to which I propose to refer is Re J (A Minor)(Wardship: Medical Treatment) [1991] Fam 33. In that case, the court had to consider the circumstances in which, in the exercise of its wardship jurisdiction, the court should approve the proposal that a child would not be re-ventilated in the event that he stopped breathing. As the child was a ward of court, no major step in his life could be taken without the permission of the court. The trial judge had approved the withholding of such treatment and the Official Solicitor on the child’s behalf appealed. In the course of his judgment Lord Donaldson MR said, (p. 41 B/C):

He then addresses the issue of consent before continuing (p. 41 E):

Returning to Lord Donaldson’s judgment, (p. 46 E):

Lord Donaldson also criticised the form of the order which had been made in that case, namely that it directed the health authority to act in a certain way. This criticism was because (p. 48 D):

In his judgment, Taylor LJ (as he then was) said (P. 52 G):

In Re J (A Minor)(Child in Care: Medical Treatment) [1993] Fam 15, the Court of Appeal allowed an appeal against an interim injunctive order requiring a health authority, in the event of a child suffering a life-threatening event, to cause such measures including artificial ventilation to be applied so long as they were capable of prolonging his life. In the course of his judgment, Lord Donaldson MR (p. 26 H):

Lord Donaldson quotes from his judgment in Re R [1992] Fam 11 (p.26):

Leggett LJ also said (p. 31 A):

These cases demonstrate:

The next case is NHS Trust v A & SA [2006] Lloyd Medical Reports 29. The factual situation in that case has some similarities to the present case save that the issue was whether a patient should continue to receive active life-sustaining treatment. The family opposed the Trust’s application in part on the basis that discontinuing the treatment being provided would be contrary to their religious beliefs and that all the family believed the patient himself would not consent to the proposed course of action but would want the life-sustaining treatment to continue having regard to their own knowledge and understanding of the patient’s religious and ethical beliefs. Quoting from the evidence:

The independent expert in that case gave evidence that in his opinion there was “no realistic chance of meaningful survival”. A medical expert instructed on behalf of the family gave evidence that there was a potential, if an infection could be cured, for the patient to get better from the acute episode that had brought him into hospital. He put the patient’s prospects of recovering sufficiently to leave the intensive care unit at not more than 20 to 25 per cent.

In the course of his judgment, Waller LJ said that the patient’s ascertainable views and the views of the family are, “highly material factors”, another principle which informs the court’s approach.

Counsel for the family in that case submitted that the question of best interests should be tested simply by reference to the Bolam test, referred to above. Accordingly, he argued that if there was a responsible body of medical opinion which would not withdraw treatment, then it followed that it would not be in the patient’s best interests to withdraw that treatment.

In dealing with that submission, Waller LJ referred to Re S (Adult Patient: Sterilisation) [2001] Fam 15. In that case, Butler-Sloss P. said the starting point of any medical decision would be the principle enunciated in the Bolam test which might give the doctors more than one option. In the course of his judgment in that case, Thorpe LJ said:

In NHS Trust v MB & Mr & Mrs B[2006] 2 FLR 319, Holman J determined an application for a declaration that it was in a child’s best interests for certain treatment to be withdrawn. As set out in his judgment (para. 30) there was a “very formidable body of medical evidence of very high quality … which is all, without exception, to the same effect”. This was that ventilation should be withdrawn. One of the treating clinicians said that he had felt for a considerable period of time that he was acting unethically in continuing to subject MB to discomfort and pain.

Despite the unanimous effect of the medical evidence, Holman J decided that it was in MB’s best interests for ventilation to continue. However, he did not make a declaration to that effect, he merely stated it. In addition, he declined to make a declaration as sought by the parents that a tracheotomy would be in the child’s best interests. He refused to do so on the basis that if the treatment was agreed, there was no need for a declaration, and if on the other hand the doctors did not agree to perform a tracheotomy, a declaration:

The parties have each made extensive submissions. I propose only to summarise these submissions in this judgment but I have taken all the matters raised by them fully into account. In my view, they have each raised all the points which could reasonably have been raised or advanced in support of their respective cases.

Ms Watson on behalf of the Trust makes clear that Mr L will continue to be provided with medical and nursing care to optimise his prospects of recovery. The issue raised by the application is what treatment should be provided in the event of a further cardio-respiratory arrest or other serious deterioration in Mr L’s condition. She submits that it is in his best interests in such an event not to be treated by CPR or other invasive resuscitation manoeuvres including ventilation or intubation.

In support of her submissions, Ms Watson relies on the unanimous effect of the medical evidence that such treatment is not in Mr L’s best interests. She relies also on Dr Bell’s and Dr Newman’s evidence that it is unlikely any clinician would make a different decision. She makes what in my view is a somewhat puzzling submission, namely that because there is no evidence there is no clinician who would be willing to provide such treatment, this is not a case in which there are not available options for the court to choose between. I should make it clear straightaway that Ms Watson is not alone in advancing this submission.

Ms Grange also submits that the evidence does not establish that the provision of the relevant treatment would require any professional to act contrary to their professional judgement. Mr Sachdeva likewise submits that it is unclear whether the treating clinicians would consider the provision of such treatment contrary to their professional duties and also unclear whether such treatment could be obtained elsewhere.

However, I remain puzzled by these submissions because the court acts on the available evidence not on evidence which might be available. The evidence from the independent experts who were instructed in this case, to which I have just referred, is that there is unlikely to be any clinician in this country who would reach a different decision to that reached by the treating clinicians. I will return to this issue later.

On the evidence, Ms Watson submits that it is the unanimous opinion of the medical witnesses that Mr L had suffered a severe brain injury and that, despite a degree of neurological recovery, his prognosis remains very poor. The medical evidence is also, she submits, to the effect that if Mr L’s condition became such as to require resuscitation and/or other invasive treatment, such treatment would not be likely to benefit him. First, he would be unlikely to survive such treatment. Secondly, if he did survive, he would inevitably suffer further brain damage and would be unlikely to be discharged from the intensive care unit. In addition, the treatment itself would be likely to cause pain and distress and would serve only to prolong Mr L’s death.

Ms Watson recognises and accepts the strong views expressed by the family as representing their opinions and beliefs. She invites me to analyse the extent to which they also reflect what would be the opinions and beliefs of Mr L himself. In the circumstances of this case, I do not propose to do so as it would have no effect on my decision as I accept the family’s opinion as to what Mr L’s wishes, feelings and beliefs would be.

In conclusion, Ms Watson submits that the evidence is overwhelming that the potential burdens of the disputed treatment outweigh the potential benefits. She has provided me with a balance sheet of what she submits are the relevant factors.

Ms Grange on behalf of the family has advanced their case comprehensively and eloquently. It is the family’s collective view that Mr L would want to receive all possible treatment to prolong his life regardless of the likely neurological or physical consequences. This coincides with their own views and their understanding of the requirements of Islam to which Mr L would want to adhere.

Ms Grange submits that it is too early for a decision to be made that life-sustaining treatment should be withheld. She relies on the change that Mr L has already made from a vegetative state to a minimally conscious state even though this was considered to be very unlikely. She submits that he might again exceed expectations and that it is therefore too soon to know the potential extent of his recovery. As referred to in the evidence, the family continue to see signs of further improvement. It has also not yet been appropriate to carry out a SMART or other structural assessment. Such assessment, Ms Grange submits, might establish that Mr L’s level of awareness has been underestimated.

Ms Grange submits that I should therefore exercise considerable caution before accepting the medical evidence as to Mr L’s likely prognosis and the likely outcome if he suffers a further arrest. Ms Grange relies on the principle of the sanctity of life, the intrinsic value of life for itself. She also submits that the wishes, values and beliefs of Mr L and his family should weigh heavily in the balance. The two aspects of his life which were of the greatest importance were his family and his faith. Accordingly, significant factors weighing in favour of all treatment measures are adherence to Mr L’s religious principles, adherence to his wishes and views and adherence to his family’s wishes and views.

As to quality of life, Ms Grange submits that assessed, as it must be, from Mr L’s perspective, there is some meaningful quality both in his current state and in the more compromised state which might follow resuscitation. She points to the fact that he is currently in a stable condition and appears in some respects and to some extent to be aware of the presence of family members, something which is likely to give real meaning to his life. She submits that, what other pleasures or experiences he is capable of, cannot currently be assessed with any confidence. Ms Grange has also made submissions on the issues of dignity and a good death. She too has provided me with a balance sheet of the benefits and disbenefits.

Turning now to the submissions made on behalf of the Official Solicitor. In his oral submissions, Mr Sachdeva paid tribute to the sincerity, devotion and self-control which Mr L’s family have shown throughout these proceedings. It appears, he said, that no burden has been too great for them to assume if they believed it would advance what they see as Mr L’s wishes and best interests. The Official Solicitor, acting as he does as Mr L’s litigation friend, expressed the deepest sympathy for Mr L’s family. He recognises, as I have said, their devotion to Mr L, the sincerity of their wishes and beliefs, and their motivation as being to obtain what they consider to be in his best interests.

Bringing the objective assessment which as Mr L’s litigation friend he must do, it is the Official Solicitor’s submission that the declarations sought by the Trust are justified as being in Mr L’s best interests. This is after giving all due weight to his likely wishes, feelings, beliefs and values as expressed through the family and the family’s own views.

Mr Sachdeva summarises the evidence as to Mr L’s current condition. He has sustained a very severe brain injury, now 12 weeks ago, and has progressed to a minimally conscious state but at a very low level. He has a long list of other health problems. In the event of a further cardiac arrest, Mr Sachdeva submits that the evidence is that Mr L’s condition will become worse with at best a return to his current state. Mr Sachdeva submits he has an undeniably poor quality of life. It might be acceptable to Mr L as his family say, but it is nevertheless not a good quality of life. Mr Sachdeva submits that the balance does not justify embarking on what might be called aggressive or invasive procedures. He, also, has provided me with a balance sheet which I will deal with when I come to my determination of this application.

There is little evidential dispute in this case. Ms Grange submits, as I have said, that I should be cautious before accepting the clinicians’ evidence as to prognosis and the likely outcome if Mr L suffers a further cardiac arrest. However, even if I were to accept this submission, the weight of the medical evidence - from the treating clinicians, from the consultants from other hospitals instructed to provide a second opinion and from the experts instructed for the purposes of these proceedings - is all to the same effect. There are some differences but they are not material for the purposes of this application. I add that I was impressed by the evidence given by all the medical witnesses. Given the consistent nature and the high quality of that evidence, I found it cogent and persuasive.

I was also impressed by the evidence given by Mrs L and Mr FL. I agree with the submission made by Mr Sachdeva and fully accept the sincerity of their views and the genuineness of their motivation. It cannot have been easy to endure what has befallen the family since the beginning of July and I also express my deep sympathy for them.

Mr L is a 55 year old man who has had a number of significant health problems for a number of years. These include type 2 diabetes mellitus, hypertension, ischaemic heart disease, chronic obstructive pulmonary disease, obstructive sleep apnoea with associated right heart failure. The weight of the evidence clearly establishes that Mr L is currently in a minimally conscious state at a very low level of the spectrum. He is currently also in a stable condition medically.

It is clear that, as a result of his cardiac arrest on 14 July, Mr L sustained severe brain damage to the higher centres of the brain. He suffered what has been described as, “a devastating neurological injury”. The extent of the damage has been established by the evidence including CT scans and EEGs. The CT scans have excluded the possibility of there being any underlying treatable cause.

The prognosis is very poor. The prognosis has been described in different terms by the various medical witnesses but it is all to the same effect. From the commencement of this case, when Mr L was considered to be in a vegetative state, Mr L was given only a small chance of progressing to a minimally conscious state and no realistic chance of progressing further. He has progressed to a minimally conscious state but he remains, as I have said, at an extremely low level of responsiveness.

To repeat some of the evidence: the EEG recording of 27 July was described as severely abnormal and led the consultant neurophysiologist to conclude that there is “an extremely poor prognosis of functional neurological recovery”. Dr Bell said that it was “unrealistic” to expect any neurological recovery beyond the minimally conscious state and that Mr L will predictably continue to lose brain tissue over time. It is Dr Newman’s opinion that the overwhelming expectation is that Mr L will remain severely damaged both cognitively and physically.

The reasons given by the medical experts for reaching their respective conclusions, as set out earlier in this judgment are, in my judgment, compelling.

If Mr L’s health was to deteriorate to the extent that he required resuscitation treatment, the evidence establishes the invasive and potentially harmful nature of that treatment including the potential for fractured ribs and damage to the internal organs. These were referred to by Dr Bell as the “tangible harms” of CPR and secondary invasive cardio-respiratory support. In the event that Mr L does suffer a further cardio-respiratory arrest, the prospects of resuscitation manoeuvres being successful are very low. The GMC guidance refers to the prospect of this resulting in the patient dying in an undignified and traumatic manner.

If the resuscitation manoeuvres were successful in that Mr L did not die, what would the likely consequences be? Dr Bell considers that there would be a “high predictability” of further brain damage. Those parts of Mr L’s brain responsible for higher function which are not already damaged or have partially repaired are, he said, exquisitely sensitive to any new insult. Dr Newman considers that another cardio-respiratory arrest will inevitably cause further brain damage. It is his opinion that Mr L’s brain would not be expected to recover sufficiently to permit satisfactory functioning thereafter. The best possible, but unlikely, outcome would be a return to his current neurological condition. In addition, it would also be “most likely” to cause multi-organ failure. Dr Newman said that the likely outcome of a third cardiac arrest would be “so disastrous” that embarking on resuscitation manoeuvres could not be justified.

Additionally, Mr L’s other health problems render him vulnerable to a “host of potential complications” and make him fragile to any further significant deterioration. His condition makes him vulnerable to infections and predisposes him to pneumonia, pressure sores, and thromboembolic disease.

The nature of the Mr L’s situation as described by the medical witnesses led them to state in strong terms their opposition to the proposition that resuscitation should be attempted. None of the doctors who have given evidence would consider it appropriate to embark on resuscitation treatment. Dr S raised concerns that if doctors were to be required to provide such treatment in a case such as this, it would raise questions about the practice of intensive care in the whole country. Dr Bell said that if such treatment was undertaken it would result in Mr L’s death being characterised by a series of harmful interventions and would conflict with the fundamental medical principle of, “Do no harm”. Dr Bell described the approach taken by the treating clinicians in this case as the “predictable response” of critical care practitioners in this country. Dr Newman gave evidence to like effect.

This leads me back to the issue I addressed earlier in this judgment. Namely, that medical professionals cannot be required to provide treatment contrary to their professional judgement. It would clearly be inappropriate for the court to exercise its powers under the Mental Capacity Act in such a way as, to adopt the words from Re J [1993], directly or indirectly to require a doctor to treat a patient in a way that was contrary to the doctor’s professional judgement and duty to the patient.

The Mental Capacity Act requires the court to exercise its independent judgement and to determine any application by reference to all the relevant circumstances. However, in my view, in the present context, one of the circumstances needs to be a choice of treatment options. If there are no treatment options, then the court has no effective choice to make. This is not the same as the situation where the medical evidence is all to the one effect as in the case of NHS Trust v MB and Others[2006] EWHC 507 Fam. In that case there were treatment options, namely the continuation or the cessation of ventilation. It was not said, save by one doctor, that the continuation of ventilation was contrary to their clinical judgement.

In the present case, no counsel has advanced the argument that there are no treatment options. Ms Watson submits that this is because there is no clear evidence that the relevant treatment would not be recognised as proper by a responsible body of medical opinion. I do not agree with that submission. It is not a theoretical issue about the treatment in general. It is an evidential issue about the treatment options in the specific case. Does the evidence establish that there are treatment options? If it does not, I question whether the Court is entitled to assume that there are.

This is not to abrogate the Court’s responsibility. As Butler-Sloss P. said in Simms v Simms[2003] Fam 83 (para. 46):

It is also submitted, correctly, that the court is entitled to disagree with medical evidence. A court is, indeed, entitled to disagree even with unanimous medical evidence. But, given that I cannot require a doctor to provide treatment contrary to their clinical judgement, a court must in my view be careful in exercising its jurisdiction under the Mental Capacity Act so as not to put doctors in the “impossible position” referred to by Balcombe J in Re J, directly or indirectly. That is why in applications of this nature the parties must specifically address in the evidence what treatment options are available. Those options must be treatments which are available. They must be treatments which would not require medical professionals to act in a way which was contrary to their professional clinical judgement.

I make these general observations because in my view the evidence in this case does not establish that there are treatment options. However, as none of the parties support this conclusion, I now turn to the balancing exercise.

I propose, first, to deal with the family’s case that all potentially life-sustaining treatment should be provided for Mr L regardless of the likely neurological and physical consequences. This is similar to what was called the absolutist submission advanced in the case of Re J. For the same reasons expressed by the Court of Appeal in that case, I cannot accept this argument. To do so would be effectively to substitute the family’s views and their assessment of Mr L’s likely views for the balancing exercise required by the Mental Capacity Act.

As Baker J said in In re M (Adult Patient)(Minimally Conscious State: Withdrawal of Treatment)[2012] 1 WLR 1653 (para. 81):

For the purposes of analysing the balancing factors in this case, I propose to use the Schedule provided by Mr Sachdeva but which I amend to accord with my judgment.

The factors pointing towards the provision of active resuscitation and/or other similar treatment (which for short I will call CPR):

The factors pointing against the provision of CPR:

Taking into account all the evidence, all the circumstances of this case and guided by the general principles referred to earlier in this judgment, when I weigh these competing factors I am persuaded that the balance comes down firmly against the provision of active resuscitation and/or other similar treatment and in favour of granting the Trust’s application. The factors I have listed as benefits are significantly outweighed in my judgment by the factors pointing against resuscitation treatment. Harsh though it will sound, in my judgment to take the opposite course would indeed be, as was said in the evidence, to prolong Mr L’s death and not to prolong, in any meaningful way, his life. I repeat Dr Bell’s powerful analysis - It would result in Mr L’s death being characterised by a series of harmful interventions without any realistic prospect of such treatment producing any benefit.

Accordingly, in my judgment, exercising the jurisdiction given to me under the Mental Capacity Act, I should make declarations as sought by the Trust the terms of which I will determine after hearing submissions from Counsel.