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Reported Case

London NHS Trust v CD & Ors (Withdrawal of Life Sustaining Treatment) [2021] EWCOP 727 (24 March 2021) (31 March 2021)

Date: 31/03/2021
Duncan Lewis, Reported Case Solicitors, London NHS Trust v CD & Ors (Withdrawal of Life Sustaining Treatment) [2021] EWCOP 727 (24 March 2021)

This matter concerned our client’s daughter anonymised as ‘CD’ for these proceedings and whether her life sustaining treatment (LST) continues. CD was incapacitous and remained in a vegetative state due to an anoxic brain injury. As a result, the treating NHS Trust felt it was not in CD’s best interests for LST to continue. Our client, AD unilaterally disagreed with this position. In these matters where there is dissention between parties the NHS Trust seek a declaration from the court on whether it is lawful to stop LST. Due to the nature of the matter, this is heard in the High Court.

The position of the Trust concerned was that due to the devastation of the brain injury, CD’s prognosis was exceptionally poor. She was assessed and the clinicians concluded that she was in a prolonged disorder of consciousness (PDOC) and remained in a vegetative state (VS). Her best prognosis was to transition at an undefined later date into minimal conscious state (MCS). However, if MCS was achieved it remained at the poorer end of the scale.

Our client argued that it is precipitous that LST should stop and sought independent evidence. The court permitted this at the first hearing and we instructed a highly regarded expert in the field to assess CD. His view is that the clinical picture confirmed what had already been recorded.

LST cases are identifiable into two areas. 1) Clinical prognostic evaluations and judgments 2) The best interests of the incapacitated person.

The second part is critical in this case. The court when assessing best interests must consider many factors (to the best of their ability) which include whether somebody would want to live in extremely compromised circumstances if treatment continued. This includes a consideration of their values and how they lived their life (for example whether the person viewed life as sacrosanct). Our client argues pursuant to the principles derived from the Supreme Court case of Aintree (2013) that his daughter’s wishes would be to continue treatment and that her views on preservation of life were clear.

Other family members retained a different view and it was that view which the court favoured. The court granted a declaration and confirmed that it would not be unlawful to bring a cessation to LST.

In these gravely unfortunate cases, the court may also be required to consider consequential issues upon the declaration being given. This can include necessary funeral arrangements if there is disagreement on this process also. This matter was dealt with by the court at a further hearing as multiple deputyship applications were made by parties to deal with CD’s property and affairs under MCA 2005.

Whilst our client’s position was in isolation, it was fundamental throughout these proceedings to remain sagaciously sensitive to all parties involved but ensure our client’s views were properly represented.


Representation

Solicitor Luke Coleman instructing Ulele Burnham of Doughty Street Chambers.


 

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