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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE KIRKWOOD)
||Royal Courts of Justice
||1st September 2005
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE MUMMERY
LORD JUSTICE TUCKEY
||AN NHS TRUST
||(An Adult, represented by the Official Solicitor as Litigation Friend)
||First Defendant/Second Respondent
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
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MR ROBERT GLANCY QC (instructed by Messrs Linder Myers, Manchester M2 4JF) appeared on behalf of the Applicant/First Defendant
MISS DEBRA POWELL (instructed by Hill Dickinson, Liverpool L2 9XL) appeared on behalf of the First Respondent/Claimant
MR M MYLONAS (instructed by Official Solicitor, 81 Chancery Lane, London WC2A 1DD) appeared on behalf of the Second Respondent/Second Defendant by the Official Solicitor
HTML VERSION OF JUDGMENT
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- LORD JUSTICE WALLER: On 26th August, last Friday, Kirkwood J granted declarations in favour of the claimant, an NHS Trust, in the following terms:
"1. Mr A lacks capacity to consent to continued life-sustaining treatment measures.
2. It is not in the existing circumstances in the best interests of Mr A to be given life-sustaining medical treatment measures (including ventilation ... and renal support by haemofiltration and/or renal dialysis) and such measures may lawfully be discontinued.
3. It is in Mr A's best interests to be given such treatment and nursing care (but not including resuscitation in the event of his suffering a cardiac and/or respiratory arrest) whether at hospital or elsewhere under medical supervision as may be appropriate to ensure he retains the greatest dignity until such time as his life comes to an end."
I should say that I have excluded the words "via tracheostomy" when it followed ventilation, that, as I understand it, having been put there by mistake.
- The judge granted a stay pending an application for permission to appeal to this court. That application came on as a matter of urgency before Laws LJ on the same day, 26th August. He adjourned it until 2.00pm last Tuesday, in the hope that a transcript of the judge's judgment would be available. He further directed that if permission were granted the appeal should follow.
- On the Tuesday papers were not available to us until about noon. In saying that I make no criticism at all, it is just factually so. A transcript of the judgment was not available and, in the urgency with which the case had been prepared, we did not in fact have before we came into court the short skeleton arguments prepared in haste by Miss Powell, for the claimant trust, or by Mr Mylonas for the Official Solicitor, who acting in the A's interests supports the judge's decision.
- Mr Glancy QC, who appeared for the second defendant, who is a son of Mr A, addressed us. It became clear to us that it was difficult to consider the full merits of an appeal, or even permission to appeal, without transcripts of the evidence of particularly the doctors who gave evidence before the judge. Indeed, without having heard from Miss Powell or Mr Mylonas, we stated that we were inclined to think that the case was one where permission should be granted, but felt it important to obtain the transcript of the judgment, which we did not have, and transcripts of the evidence. After some debate as to the length of the adjournment required, we refixed the case for today, requiring the parties to use their best endeavours to obtain the transcripts. We also intimated that the parties might wish to put in further skeleton arguments in the light of the transcripts.
- Transcripts have been obtained of all the relevant evidence, save that of a Dr B. The importance of the evidence of Dr B will become apparent, but it seems that Dr B had given evidence to the judge by video link and unfortunately recording of that evidence had been unsuccessful. But a note of his evidence has been agreed between counsel, and it is a full note and we clearly have the full benefit of the evidence that Dr B gave.
- Further and more extensive skeleton arguments or written submissions were also put in. It is right to say that they too were rather late in the day, and no criticism is made of that. But we provided ourselves with an opportunity of reading those skeleton arguments and the written submissions in full before we commenced the hearing this morning.
- We should say straightaway -- I understand my Lords to agree -- that, as we have already intimated, it is right that permission to appeal should be granted, and it is right that today's hearing should be treated as the hearing of the substantive appeal.
- I can take the history, as the judge did, from a note made by the Deputy Official Solicitor. I shall attempt to interleave in the appropriate chronological place the relevant evidence.
- Mr A is thought to have been born on 10th August 1919 and is therefore believed to be 86 years of age, although there has been some suggestion that he may have been born at an earlier time and is in fact over 90. He is originally from Pakistan but settled in Scotland where much of his family, including his eldest son, Mr RA, and his youngest son, Mr RK, and another of his sons, Mr SA, who is the second defendant, all live. Mr A has a significant past medical history which led to a coronary artery bypass grafting performed in 1996. He has a history of impaired renal function dating back to at least 1999. It is believed that since those dates he has had further episodes of myocardial ischaemic attacks of the brain, that is to say mini-strokes. Mr A's recent episodes of ill health date back to at least June 2005 whilst he was in Pakistan. He apparently suffered a heart attack and developed acute chronic renal failure, peripheral edema and total lack of urine production. He was admitted to an international hospital in Islamabad on 1st July 2005, where it is understood he underwent at least one course of dialysis for renal failure. It is unclear as to the extent to which Mr A's condition improved whilst at hospital in Islamabad, but in the event he was discharged by the hospital on 4th July.
- On the same day he was discharged from hospital, Mr A took a flight to an airport in England where he arrived on the afternoon of 5th July 2005. Immediately after leaving the airport Mr A took a taxi with members of his family intending to return to Scotland. Unfortunately during the journey his condition deteriorated and the driver had to call an ambulance which took him to the accident and emergency department of the hospital.
- On arrival at the hospital Mr A was described as being in extremis and close to death. His condition was stabilised and he was transferred to the intensive therapy unit. On 6th July he is reported to have suffered a cardiac arrest which necessitated cardiopulmonary resuscitation to revive him. By the end of 6th July Mr A required artificial support of his lungs, heart and kidneys in order to keep him alive. Mr A's treating clinicians at the hospital reported that Mr A's progress since his admission had been exceedingly poor. Attempts were made to wean him off his respiratory and renal support, but these were unsuccessful and he remained dependent on both. The cardiology and renal specialists assessed that they would be unable to improve his underlying condition, and an echocardiogram test revealed marked damage to his heart muscle with function in all but his lateral wall being impaired. Mr A also received ventilated support via a tracheotomy, comprising pressure support ventilation with supplemental oxygen. He was provided with renal support via an indwelling vascular catheter, and also received continuous haemofiltration. Nutrition was provided to Mr A via a nasogastric tube. In addition to these Mr A also had an invasive arterial and central venous catheters to manage his blood pressure and to aid blood sampling and to facilitate the administration of drugs. Mr A's treating clinicians assessed that there was little likelihood of recovery, and that he was unsuitable for chronic renal replacement therapy. They believed that the treatment he had been receiving would not change the outcome of his illnesses, and that if he continued it would subject him to both psychological and physical distress. They accordingly concluded that it was in Mr A's best interests to withdraw all but palliative care.
- Dr MP, a consultant in anaesthetics and critical care at another NHS Trust, was commissioned by the hospital to provide an independent report on what medical treatment would be in Mr A's best interests. Dr MP carried out an examination of Mr A on 5th August. Dr MP reported the most marked finding on examination was a presence of severe peripheral odema. Dr MP agreed with the conclusion of the hospital's treating clinicians, reporting that there was no realistic expectation of Mr A improving his condition and that the treatment that he was receiving appeared only to be delaying his death. He stated that in his opinion it would not only be futile, but it would also result in Mr A being subjected to invasive, painful and at times undignified interventions, with little hope of these leading to his recovery. Dr MP recommended that treatment should cease to allow Mr A to die comfortably, and with as much dignity as his state could allow with appropriate palliative care.
- Mr A's family have opposed the proposals to withdraw life-sustaining treatment. Mr SA's (a son)'s solicitor wrote to the Trust's solicitors on 10th August 2005 confirming his objection to the withdrawal of ventilation support, and requesting that no such withdrawal should be made without a declaration of the court. In response to this objection the Trust made their substantive application to the court.
- It was at this stage that various statements were prepared on one side and the other. So, for example, a statement was prepared by Dr MS, who is a consultant anaesthetist and lead clinician for intensive care within the Intensive Care Unit at Lancaster Royal Infirmary and was responsible for the treatment of Mr A. He said in his statement, under the heading "Prognosis with treatment":
"12. Mr [A] would need to remain attached to his mechanical ventilator permanently and his haemofilter for extended periods (days at a time). He would be required to remain in an intensive care environment with regular disruptions to sleep patterns due to interventions to him and other patients. His ability to communicate would be severely restricted. His clinical course would be one of repeated infections due to the numerous invasive lines required to manage his renal failure and ventilation. This would lead to a steady inexorable physiological decline requiring increasing levels of invasive support. We would require to undertake regular invasive line changes to enable his treatment to continue.
13. He would need to continue to be fed through a tube in his nose.
14. Ultimately these processes would result in him dying.
Prognosis without treatment
15. Upon stopping artificial ventilation Mr [A's] carbon dioxide levels would rise. This would result in him becoming increasingly drowsy and then unconsciousness would ensue, followed by death due either to his breathing stopping or his heart stopping. This process would be expected to take less than a day.
16. With Mr [A's] renal support discontinued but other support continuing (including ventilation) he would be subjected to a rise in levels of waste metabolites, water and other blood components. Some of these will produce a slow decrease in his conscious level over several days but some may produce a sudden cessation of cardiac function. Death would ensue after several days.
Best Interests of the Patient
17. We have attempted to establish the wishes of Mr [A]. We have been unable to obtain an indication that he understands what is happening and he is unable to give his opinion. We have approached the relatives, who have been kept informed of his treatment and progress. We have been unable to get consistent agreement with our management plans.
18. The medical and nursing staff think that it is in the best interests of the patient to withdraw care. The treatments currently being provided for Mr [A] will not change the outcome of his illnesses. If the treatments are continued he will be subjected to psychological and physical distress.
19. At present, Mr [A] struggles and provides resistance to medical and nursing staff who try and insert multiple lines and provide treatment. For example, the insertion of a naso gastric tube, is uncomfortable and painful. The insertion of a naso gastric tube is the method through which nutrition can be provided to Mr [A]. Mr [A] also pulls lines out that need to be re-sited, thereby causing further distress and pain.
20. The clinical and nursing team strongly feel that the continuation of medical treatment, such as the insertion of lines, and naso gastric tubes required to artificially prolong Mr [A's] life is an assault upon him.
21. We would aim to provide Mr [A] with an opportunity to be with his family, the ability to try to speak and to have freedom from his multiple lines and encumbrances. We would like Mr [A] to have a natural and dignified death."
- There was a further statement which was to the same effect from a Dr RM, and a further statement from a Dr DH which was also to similar effect. At the same time the hospital consulted medical personnel who were not actually responsible for treating Mr A. As I understand it, that is true of Dr PS (whose statement appears at B20 in type form and in signed form at B24 and 25). That is true also of a Dr P (whose statement starts at C17), who is a consultant in anaesthetics and critical care at Lancaster Teaching Hospital. He said this at paragraph 10:
"It is my opinion, due to the severe and chronic nature of Mr [A's] underlying disease, that there is no realistic expectation of improvement in his condition. Indeed, the current treatment he is receiving would seem only to be delaying his death. To continue current treatment would, in my opinion, not only be futile, but also result in Mr [A] being subjected to invasive, painful and, at times, undignified interventions with little hope of these leading to his recovery. I would suggest the correct course of action would be to cease the current treatments and allow Mr [A] to die comfortably and with as much dignity as his debilitated state will allow, with the appropriate palliative care."
- Also at approximately the same time Mr A was examined by a consultant psychiatrist, Dr QL. The importance of his position is that he spoke Mr A's language. The aim of his examination and contact with Mr A was to take a view as to Mr A's capacity to consent to treatment. He says at page 5 of his report that he was able to talk to Mr A in his language. It is unnecessary to read the report in any detail. It is sufficient to say that he clearly received some response from Mr A. What Dr QL was able to say, at the top of page 6 of the report, was that:
"Based upon my discussion with Mr [A], what I have been able to understand from his inaudible words, actions and gestures and nodding of his head, is that:
(a) He wants to be allowed to go home.
(b) He believes that he is able to go home without any problems.
(c) He failed to either understand or accept that he is so critically ill that he most probably would not be able to arrive at his home.
(d) He very clearly understands that he suffers from serious problems with his respiration/breathing, heart and kidneys and that they are not going to get better.
(e) He made it quite clear that he does not think that the treatment being provided had been of any benefit to him and has not made him any better. He did say twice, through nodding his head and hand gestures, that he would like his doctors or myself to take all the tubes off him.
(f) However, Mr [A] refused to answer, every time I asked, would he like the doctors to:
(i) stop his treatment, or
(ii) continue his treatment.
I do not think there was a language barrier between us because I firmly believe that Mr [A] understood what I was saying and he gave no indication at all at any point that he was unable to understand me. However, it is very unfortunate that he was not able to communicate properly because of his tracheotomy."
His conclusion was that he did not have the capacity to consent or otherwise to treatment.
- It is on the basis of that evidence, as I would understand it that it has to have been accepted throughout this case, Mr A has no capacity to consent or otherwise.
- Statements were also prepared on behalf of the second defendant, who was acting on behalf of the family in resisting the withdrawal of treatment. Those statements appear in the bundle. They are, so far as this stage is concerned, all dated 11th August. The statement was from SA, one son; from GS, a wife of SA; from RIA, another son. They expressed the view in various forms that Mr A was a fighter. They expressed the view that they thought that Mr A would still get better. A summary of their views can be obtained from the statement of the solicitor acting for them, his statement being at B57. He summarised the family's position in the following way:
"(a) The family are interested in these proceedings and would wish to be joined as a Respondent through their brother, [SA].
(b) The views on this matter of [SA] are identical to those of all of the other family members referred to and identified by me above.
(c) [SA] and his family have reservations about the medical views expressed that Mr [A] lacks capacity. Whilst the family accept and appreciate that 'capacity' is a legal test, from their dealings with Mr [A] at Hospital, they are all of the view that Mr [A] is capable of understanding what is going on around him and of communicating with family members, both verbally and using gestures.
(d) The family have concerns about the care and treatment provided to Mr [A] since his admission to the [hospital]. They particularly note the fact that since his admission Mr [A] has contracted MRSA.
(e) Mr [SA] and his family do not agree or consent to the discontinuance of life-sustaining measures currently being given to Mr [A] because:
• All of the family still believe that there is at least some hope of improvement in Mr [A].
• None of the family believe that Mr [A] is currently suffering any pain. (This is based on their observations of and dealings with Mr [A] in hospital).
• The family are all practising Muslims. The family have taken advice from at least one Imam, (a religious scholar). He has advised that discontinuing Mr [A's] current treatment regime would be contrary to the Islamic religious faith and belief system.
• Finally, all of the family believe that if Mr [A] knew and appreciated the Applicant's proposed course of action he also would not consent. This is based on the family's discussions with Mr [A] in Hospital and their own knowledge and understanding of Mr [A's] religious and ethical beliefs before he took so seriously ill."
- At this time and prior to the coming on of the substantive application that the Trust was making, the Trust had to make an urgent interim application to the court and it made that application on 11th August. That was due to the fact that Mr A started to forcefully resist attempts by the hospital staff to insert a new line required for the continuation of his haemofiltration treatment. This became necessary because the previous tube had become blocked and needed replacement. Mr A is reported to have resisted attempts to insert the new line in his groin area by putting his hand over it and by raising his hand above his head. The staff at the hospital assessed that they were unable to insert the new line without using significant force. The treating clinicians concluded that the only alternative was the administration of anaesthetic and/or sedation.
- Pauffley J on 11th August made an interim declaration that it was in Mr A's best interests and lawful for the clinicians caring for him to administer haemofiltration and that they might do so by having first administered a sedative and/or anaesthetic agent. At that hearing it was expressly stated that this course of action was to be undertaken with a view to keeping Mr A alive until a substantive hearing could be heard on 25th August, when the court would be in a position to give full consideration to the matters arising from the application.
- It was following this hearing that the Official Solicitor instructed Dr DB. He is a consultant in anaesthesia and intensive care. He was instructed by the Official Solicitor to examine Mr A and prepare a report for the court. Dr B attended the hospital on 14th August, when he examined Mr A and spoke to Mr RA (that is the son, the second defendant) at some considerable length. Dr B identified two areas of treatment that he felt could be undertaken to establish whether Mr A might be capable of improvement to his health. The first area related to his low levels of haemoglobin, which Dr B recommended should be boosted through blood transfusions. The second area of treatment suggested was the drainage of a large accumulation of fluid which had occurred around the left side of the chest of Mr A and which was impeding his breathing. Dr B recommended that Mr A's condition should be reviewed in four to five days to see whether he was responding to these additional interventions.
- Through his discussions with Mr RA and with the treating clinicians, Dr B was able to reach what he thought was an agreed scheme of care for Mr A. The terms of that agreement were recorded in Mr A's clinical notes for 14th August. It will be noted that under the terms of the note the existing care of Mr A, together with the additional interventions advised by Dr B would continue and would hopefully lead to a change in the ventilation arrangements, which would allow Mr A to more easily communicate with his family. The note, however, made provision for Mr A's treatment to change from active intervention to palliative care only in the event of the following events occurring: (a) any deterioration in Mr A's condition; (b) there being no improvement Mr A's condition over the next four to five days. The note also provided that in the event of cardiac arrest Mr A would not be resuscitated unless the attack had been triggered by a simple reversible pathology such as a sputum plug.
- Dr B in his discussions with Mr RA noted that the family had concerns regarding the funeral arrangements for Mr A. The first concern related to their wish to repatriate Mr A's body to Pakistan in the event of his death. This would only be feasible if the treating clinicians were able to certify that his body was free from infection. The family were worried that Mr A's MRSA infection might prevent such a certification. The other concern was to ensure Mr A's burial took place within the very short time limits provided under Islamic custom. Dr B established it was important to Mr A's family to avoid any delay in the release of Mr A's body.
- The Deputy Official Solicitor understood that in order to deal with those concerns, Dr B was able to confirm from speaking to the treating clinicians that the MRSA infection was purely superficial and would not prevent the clinicians from providing the required certification. Dr B also was able to obtain confirmation from the treating clinicians that if Mr A died following the withdrawal of treatment with the family's consent, his death would be certified as having occurred due to natural causes and his body should be released quickly. Dr B also recommended that the family be consulted over the timing of the removal of any treatment, as this was likely to dictate the timing of Mr A's death.
- During the course of 15th and 16th August, Mr A's condition deteriorated. It was reported that he required inotropic support, that he had a raised temperature and a high white cell count. It is also understood that Mr A's heartbeat rose significantly. It is understood that around 9.00pm on 16th August Dr MS spoke to family members, including Mr RA but not Mr SA, who was himself receiving hospital treatment at the time. It is understood that Dr MS explained the situation and advised that in his view Mr A was now dying and his death would be imminent. Mr A's family had stated that they were given assurances that if the ventilation support was removed Mr A would die within a matter of minutes, and at worst within an hour. Dr B was advised and he refused to commit himself to any time scale for Mr A's death, but did consider that it was likely that he would die within hours rather than days. On behalf of the family Mr RA stated that he signed an agreement which agreed to the Trust withdrawing treatment, and at 10.45pm on 16th August the ventilation support was removed.
- I interject here just to say that this is not an unimportant consideration in the context of a matter which must be taken into account when considering the best interests of a patient; i.e. the religious beliefs of the patient and the views of the family. At this stage the family were prepared to agree to withdrawal of ventilation support which would have, as they thought, have led to Mr A's death within a comparatively short time.
- Then the Deputy Official Solicitor continued:
"Contrary to expectation, Mr A did not die shortly after the removal of ventilation support. Instead Mr A was able to breathe without the assistance of artificial ventilation and was still alive over 24 hours later. In these circumstances Mr SA made an application to the court for a declaration that it was in Mr A's best interests to receive nutrition, hydration and haemofiltration. The Trust agreed without dispute that Mr A should receive nutrition and hydration and that he should be provided with an oxygen mask but not ventilation support."
There was to be a hearing on 18th August 2005. That was adjourned briefly to allow the Official Solicitor and counsel for the Trust and for Mr SA to speak to Dr B by phone. Following the telephone conference with Dr B which lasted an hour and a half, the hearing was resumed and a report on the conference was given to the court. The advice of Dr B was that the reinsertion of haemofiltration on its own would not be sufficient to prevent Mr A's death unless it was accompanied by other support treatment such as ventilation and the active use of resuscitative techniques. Although Dr B had grave reservations about the reintroduction of haemofiltration and other support, he did advise that on balance it would probably extend Mr A's life, possibly to the extent that it would ensure that he was still alive by the date of the full hearing on this matter on 25th August. In the light of the submissions made and the report given of Dr B's assessment, the judge, who was Kirkwood J, with considerable hesitation made an order in the terms sought by Mr SA.
- There were then further witness statements produced from Dr MS, Dr RM and a manager/nurse, JT. In those statements it was confirmed that the hospital re-established active support for Mr A on 19th August in accordance with the declaration of the court on the 18th. Dr MS stated that a nasogastric tube was already in place for feeding and that on 19th August he inserted a large bore cannula for haemofiltration and a central venous catheter. He advised that sedation had to be used. Dr MS reported that Mr A then suffered respiratory failure and had to be intubated and placed on a ventilator. Mr A went into ventricular tachycardia which required chest compressions and DC shock to treat his heart.
- The statement from Dr MS at this time is in the bundle at B26. He sets out the position from paragraphs 4 to 13. In that statement he says this:
"9. In order to continue to provide haemofiltration and life sustaining measures the treating clinical team will need to put in place the following:
a. Mr A would need to remain attached to his mechanical ventilator permanently. A tracheostomy would have to be re-fashioned, probably in theatre. Repeated suction clearance of secretions would occur. Mr A would be sedated and analgesia delivered for him to tolerate these events and stop him from pulling the tracheostomy out.
b. Haemofiltration will be required for extended periods (days at a time). Large bore cannula will be placed in the groin or neck. Mr A will be sedated during the procedure of insertion and haemofiltration for comfort and to prevent him from pulling the lines out.
c. The provision of sedation to a patient with multi organ failure is particularly dangerous and there is a possibility that it could precipitate death through inactivity, postural pneumonia and venous thrombosis up to cardiac arrest for which invasive and intensive resuscitation may not be successful.
d. Mr A would be required to remain in an intensive care environment with regular disruptions to sleep patterns and discomfort due to interventions to him including therapeutic manoeuvres, cleaning of bodily function and events happening to other acutely ill patients. Staff on the Medical Ward are highly trained and experienced in caring for patients on a palliative care pathway in a more appropriate atmosphere and environment.
e. Mr A's clinical course would be one of repeated infections due to artificial ventilation and the numerous invasive lines, (intravenous catheters and cannula for example) required to manage his renal failure. Mr A currently has features suggestive of sepsis of the respiratory tract. The insertion of lines, for example for haemofiltration or to measure the biochemical levels in his blood, would cause pain and discomfort. At present, Mr A struggles and provides resistance to medical and nursing staff who try to insert the lines and provide treatment. For example, Mr A has a tendency to pull out the nasogastric tube which then needs to be re-sited. This is happening up to 3 times a day causing further distress and pain.
f. Mr A told Dr [L], Consultant Psychiatrist in Old Age, who also spoke Mr A's native language, that he wanted the doctors to remove the tubes and lines ...
g. Continued active treatment would lead to a steady inexorable physiological decline requiring increasing levels of futile and invasive support.
h. We would need to undertake regular invasive line changes that would cause pain and discomfort to enable his treatment to continue.
i. Mr A needs to be continue to be fed through a tube in his nose. Mr A removes the naso gastric tube regularly (over the evening of 17th and 18th August, Mr A pulled the tube out twice as it causes discomfort and needed to be re-sited). The insertion of a naso gastric tube is uncomfortable but is the best method through which nutrition can be provided to Mr A.
10. All of the above processes of replacing lines and tubed will cause pain and/or discomfort."
- Paragraph 11 is then in these terms:
"The medical and nursing staff believe that it is in the best interests of the patient to withdraw active treatment and move to a regime of palliative care. The invasive treatments currently being provided for Mr A will not change the outcome of his illness.
12. The clinical and nursing team strongly feel that the continuation of futile medical treatment, such as the insertion of lines, and naso gastric tubes required to artificially prolong Mr A's life is an assault upon him.
13. In providing palliative care, the Trust would aim to provide Mr A with an opportunity to be with his family, the ability to try to speak and to have freedom from his multiple lines and encumbrances. We would like Mr A to have a natural, pain free and dignified death."
- There was a statement in similar terms by Dr RM. As I have already stressed, there was statement also by JW, who was a nurse within the intensive care unit, and she further supports the view of Dr MS and RM. That statement is at B39.
- It was at this stage that Dr R, a consultant in anaesthesia and critical care, was instructed by the solicitors acting for Mr SA, one of the sons. Dr R visited Mr A on 21st August 2005. It is apparent that he did not actually examine Mr A and did not himself attempt to speak to Mr A. In the report that he ultimately produced, in the explanatory notes he said:
"I did not attempt to speak to, or examine, Mr [A], since he was sedated and because I did not wish to compromise hygiene care in view of MRSA colonisation. I did investigate the intensively monitored physiological parameters and the multitudinous drug and fluid infusions in progress."
- In the report which he ultimately produced, he advised that Mr A looked peaceful and was receiving very comprehensive measures to sustain life, to treat infection, to hydrate and feed him, and to keep physiological parameters near normal as possible. He also advised that Mr RA had confirmed that he could no longer communicate with Mr A because of the sedation that had been used. Dr R said that the initial action of the hospital in providing full resuscitation to Mr A was correct, and he did not consider that there had been any omissions or excesses in the management of his initial care. Dr R also stated that he considered that the approach taken by the treating clinicians in considering the withdrawal of life-sustaining treatment was correct, given that there was organ failure in at least four major systems, namely renal, respiratory, cardiovascular and metabolic.
- Dr R's view was then expressed in the following terms. He refers to the appropriateness of the treatment up until 11th August, and he then refers to the fact that there was withdrawal at one stage. He then said this:
"During the period of withdrawal, Mr [A's] general condition deteriorated significantly. When therapy was re-introduced the prospects for its success were, in my opinion, greatly reduced. There was now significant cardiovascular organ failure, renal failure, respiratory failure, metabolic failure, early central nervous system failure and sepsis. Even in the best of therapeutic circles, major multi-organ failure of that degree statistically indicates an in-CCU mortality rate increased to around 70%. Thus, though Mr [A] appeared to be stable when I saw him on 21/8/05, my opinion is that he has a less than 30% chance of leaving CCU - any CCU - alive."
- Then under the heading "Life expectancy, quality of life and trust issues":
"Were Mr [A] to be one of the lucky 30% of survivors, he would not leave hospital as fit as before 1/7/05. First, his left ventricular function has deteriorated significantly and he may well now be subject to paroxysmal atrial fibrillation with the attendant risks of embolisation and acute circulatory inadequacy. Second, his renal function is now end-stage, so he would be totally dialysis dependent. Note in this context that the local Dialysis Unit has already declared that medical co-morbidities would exclude him from their dialysis programme. Third, he could well be left with residual respiratory dysfunction. In my opinion, therefore, overall life expectancy would be greatly reduced.
Quality of life is, of course, a very individual concept, differing between individuals, families, societies and faiths. From a strictly medical point of view, Mr [A] would not enjoy the same quality of life as hitherto for the reasons given for reduced life expectancy. Whether or not he would find that reduced quality acceptable is beyond our ken. His family is plainly of the belief that, given their family's personality, he WOULD continue to enjoy life, albeit on a more restricted basis. I respect that belief."
- There was at this time also a further statement, it is right to say, from another of the sons. That appears at page B67 of the bundle. He said this, when dealing with his father's best interests:
"18. I of course accept that whatever now happens to my father is to be determined by the Judge on Thursday. I believe that my father is a fighter. I do not believe that my father would ever want him or his family to give up or to stop trying if there was any possibility that his life would or could be prolonged. My family and I gave their consent to the ventilator being switched off last Tuesday because we were led to believe at that time that there was absolutely no hope for my father. Clearly that was not the case. My father's spirit has shone through.
19. I do not believe that it would be right from a moral and religious point of view to stop my father receiving appropriate treatment, food and hydration. I believe that my father is entitled to whatever treatment is necessary to sustain his life. I believe that this is what my father would want if he was able to speak for himself."
- Then in paragraph 23 he summarises the position:
"At the end of the day, I and the rest of the family do not want my father to suffer and die in pain. Despite this, however, I know that my father would want to fight for as long as he can during this final period of his life. I am pleased that the family, since Thursday, have been able to communicate further with my father. I know that that is what my father would want if he was able to speak now."
- On 23rd August, prior to the hearing before the judge, Dr B produced a further report. That was described as his supplemental report and it is the key report from Dr B in the case. It is only necessary to quote it in part:
"6. Given the extent of major organ dysfunction affecting respiratory, cardiac, renal, hepatic and haemopoietic systems with no further treatment options that can re-establish satisfactory and sustainable primary function, it is impossible to countenance recovery to the point where the patient is sustainably free from invasive multi-system monitoring, support and interventions. It is inevitable furthermore that despite this process, death will occur and accepting as above that the timescale for survival is less relevant than the quality of life over that timeframe, one cannot realistically anticipate survival beyond six months, even with provision of full active support.
7. Even from this position it may be argued that survival over that timeframe may be meaningful for the individual involved. This would have to incorporate an understanding of the rationale for, and the benefits of, interventions of a medical, nursing and allied (e.g. physiotherapy) nature, that were either uncomfortable, distressing, and invasion of privacy or possibly all of these. The potential for this individual to regain capacity is clearly integral to such a consideration. Given that the patient did not demonstrate meaningful attempts at communication with the evaluating psychiatrist Dr [L], despite the absence of a language barrier, and this lack of capacity was not driven by any obvious reversible gross biochemical derangement, hypoxia, significant sepsis, or inappropriate sedative strategy, one cannot easily anticipate a return of capacity. It is possible that the currently observed problems reflects a contribution from cerebral ischaemia, noting the history of transient ischaemic attacks, which would clearly add an additional dimension to the already significant multi-system pathology. It is accepted however that although the patient currently lacks capacity, he is clearly sentient and it is a consistent observation of all disciplines of attendant staff, consolidated by my own assessment, that his response to interventions goes beyond a simple reflex to noxious stimulation. Mr [A] demonstrates a consistent purposeful effort in detaching or removing medical devices and resisting medical interventions. It would be difficult to interpret these responses as any other than a reflection of discomfort and distress, if not actually a gesture expressing a wish to be free from such intervention.
8. One could conclude from this evaluation, majored on relatively objective clinical measures of where this patient's 'best interests' lie, namely;
1. Can we entertain survival from this severe, complex, acute-on-chronic illness?
2. Can we entertain survival free from major medical interventions?
3. Can we entertain survival with restoration of capacity and free from discomfort and distress?
to which the reply is an increasingly robust negative, that care should be directed towards freedom from that discomfort and distress rather than perpetuation of these through active support.
The requirement for the attendant medical staff to embark on resuscitation manoeuvres, including external cardiac compression and administration of electrical shocks, to comply with the directive from the Court on the 18th of August to re-establish all active support, consolidates my opinion on all of the above three aspects."
- The matter then came on for hearing before the judge on 25th August, which was a Thursday. One of the sons gave evidence, Dr R gave evidence and Dr B gave evidence. Dr B gave evidence by video link and, as already indicated, the only record of his evidence is that contained in a note prepared by the solicitors as an agreed note of what he said. His evidence in chief was to confirm what he had said in his report. For example, he said:
"A week ago my opinion was founded on a prediction. From what I understand now, re-establishing the treatment regime has confirmed my views: the predicted complications occurred. My opinion has been consolidated by the response of the patient. Mr A simply doesn't have the physiological reserves to sustain his life any more, without aid. Therefore he is not going to regain independence of the mechanical and/or chemical support, or the haemofiltration - mechanical respiratory support through ventilation, cardiologically through chemical support or renal, through haemofiltration."
- He then commented on Dr R's evidence, there being a dispute as to exactly what caused the original problem in Pakistan. On that Dr B expressed the view that the triggering mechanism was an impairment of cardio function, as opposed to the failure to take in sufficient fluids. He expressed the view, again, that Mr A would never be independent of filtration or haemodialysis. He dealt with an aspect of Dr R's report in this way. He quoted the first full paragraph on page 6, where Dr R had said, "At some stage Mr A's blood pressure dropped profoundly to a low of 65/30. He was given adrenaline and he went into horrendously fast and pulseless VT. DC shock therapy was required to reverse it and double strength nor-adrenaline (NA) in high dose was required to maintain an adequate blood pressure. In fact, the NA has been required ever since, but was down to a more reasonable level when I saw him." Dr B's comment on that was that that was a correct description of what happened. However, Dr R's analysis was the wrong way round. Dr B stated that it was the process of dying that occasioned a further deterioration. This was evidenced by the fact that Mr A did not require significant amounts of adrenaline, he instead required very aggressive resuscitation and non-adrenaline Chemical cardiovascular support. This indicated that Mr A has no cardiac reserves. He is in the process of dying, hence the further deterioration. He went on lower down the page:
"Mr A will continue to require ventilatory support for as long as the need for ongoing dialysis remains. He requires analgesia and sedation not just for humanitarian purposes but to enable the support to be provided. He needs to be 'hooked up'. Ventilatory support will be ongoing and invasive. There is no prospect of reducing the degree of intervention. It will have an inevitable impact on Mr A's reserves."
- Over the page he said:
"When I examined Mr A I observed a level of background agitation about medical devices including pulling out the tracheostomy, naso-gastric tube and cannulae. When I embarked on my physical examination, Mr A's agitation increased and he used his limbs to push me away. He actively resisted and pushed me away and grimaced. This was not just a reflex response isolated from any concept of suffering. It was my interpretation he was uncomfortable, agitated, distressed. In my view, it was a display of discomfort and distress. Even during a simple examination he would push my hands away. He was even trying to push my hand away and the stethoscope away when I listened to his chest. I interpreted this to be active resistance."
- Further down he said:
"I see no realistic prospects of improvement in capacity. I do not believe there is a chance of improvement through the removal of sedation to allow Mr A to communicate with his family. On this basis I see no realistic prospect of return to capacity, then given that a return to capacity is one of the requirements that should be met when deciding whether or not to provide ongoing treatment, it is unrealistic to expect the Hospital to provide further support and in particular, renal and ventilatory support. It is unrealistic to expect him to achieve independence from renal and respiratory assistance, which are those causing him most distress. I cannot foresee any reduction in the discomfort and distress they cause. It is impossible for him to escape from the loop of sedation that is necessary to enable him to tolerate the interventions necessary to keep him alive."
- He comments on Dr R's use of the 30% chance by saying:
"Dr R has introduced figures produced by research literature looking at a broad population for patients with simple conditions such as a young patient in an RTA or pneumonia, not as in this case, irreversible multi organ failure. I have approached prognosis as set out in my reports and in my evidence by assessing the individual patient. I have not given Mr A a chance of survival. Mortality from this episode in this individual must be 100%. It's the timing, location and style of death that is subject to variable.
This patient will die as a consequences of his illnesses. He has severe organ dysfunction in most systems in his body. He is not a young person with a good background level of health. Dr R's use of and reference to mortality and critical illness research and figures is possibly less than helpful. Mr A's critical illness is founded on the background of severe organ failure. I would approach prognosis differently to Dr R."
- He was cross-examined by Mr Glancy, on behalf of the family, and he did not change his view. For example, he said:
"My view firmly is that there is no chance, absolutely and definitely, of long term survival, even if Mr A was kept alive by dependence on support mechanisms."
- In another answer:
"There is no realistic chance of meaningful survival. Even then such a statement is a simplification. It is not just an issue about survival. The question is what are the chances of being able to continue any process of care that has any possibility of breaking the current cycle of discomfort and distress with Mr A?"
- He then said this:
"The issue has to be balanced with whether or not we think there is a realistic chance of survival in the individual. Is there a realistic chance that the individual has the possibility of surviving free from intubation. Survival has to be balanced with quality of life. We always have to balance these two considerations. Clearly we should pursue longer term goals if there is a realistic chance of hitting the indicator and being free from interventions and gaining some pleasure from life. Now, however, as far as Mr A is concerned, it is just about survival. At most he will survive 6 months. He will not regain capacity because of the organ damage he has sustained which is not capable of improvement and will not regain independence from invasive intervention."
- I would interject to say that Mr Glancy accepts that what Dr B is saying in that answer is that in his view Mr A could never be removed from an intensive care unit. He would always be subjected to the procedures to which he is presently being subjected, and even in that situation he would be unlikely to survive more than six months.
- Dr R also gave evidence. Again, he supported the report that he had put in. He said that he drew the conclusion that the current regime of treatment is keeping him stable, and that if they can cure the infection that is now probably only a factor that they are not unable to arrest, if they can cure the infection then there is a potential, and he would not put it more strongly than that, a potential, to get better from the acute episode that brought him into hospital.
- In relation to what had brought Mr A into hospital, he said:
"He did have heart disease, no doubt. He did have some cellular vascular disease in the form of transient ischemic attack. He did have renal impairment. I would not describe it as renal failure I would describe it as renal impairment, because he was not actually requiring regular dialysis, and despite these abnormalities he led a very active life both physically and mentally. So he was for his age I think a remarkably fit man in general terms and coped extremely well, so we have to take that as our basis. This incident has knocked him back, there is no question of that, and it has I think converted his renal impairment into renal failure, and I think that if he works to survive this failure in intensive care he would probably require regular dialysis just to maintain normal renal haemostasis.
His heart performance has marginally - and I use that word advisedly - deteriorated in that when he had an echocardiogram he had mild left ventricular dysfunction. When he had a subsequent one on 12 August which was vetted by a cardiologist he had moderate left ventricular dysfunction, so there was a marginal deterioration in his cardiac production. However there are many, many people who live for years with moderate less than acute dysfunction, provided they get proper medical treatment - either their blood pressure for instance is kept under control, and he is on the antihypertensive drug ..., and he is on GTN, which is ... nitrate which will keep his circulation open and keep his tissues ... So he would need to take those ... for the rest of his life."
- Further on he said:
"There is a remote possibility, and I cannot be more accurate than that at the moment, a remote possibility that he will get some residual respiratory dysfunction if he recovers. He may get some exercise ... where he ... He may even require intermittent supportive ventilation. There is now an established system called Home Ventilation System which is designed for people who can pass ... during the course of the day with adequate breathing but at night there may be a ..., so there is a system now with regards to home ventilation for as many of the 24 hours as he requires."
He accepted that there would be neurological impairment and that it would be a matter of degree.
- So then Dr R was asked about the chances of some form of recovery which would enable Mr A to leave the intensive care unit. What he said in answer to that was:
"Well, it is a circumstance which none of us can predict with any accuracy, so it has to rely on reliable statistics - not to make a decision but just as a very, very broad guideline as to what happens in the majority of cases. So I took this paper from a very well-respected peer journal, Intensive Care, just as an indicator of what his current possibilities are for getting to the point of being fit enough to leave ITU. I have to say that these are broad generalisations, but the actual figure in the paper I refer to is that he had possibly a 33 per cent chance of recovering sufficiently to leave ITU. I say in my report that in my personal opinion in this particular circumstance, I would say it is probably less than 30 per cent, but it is a question of whether anything less than 30 per cent is acceptable to the patient or to his relatives."
It was at that stage that the judge intervened to say that if he thought there was a 30% chance, then he would not be granting a declaration. Indeed, if the trust thought there was a 30% chance, they would not be seeking the declaration and that was where the critical issue was.
- Dr R was then cross-examined and he was asked about the distress that was being caused to Mr A. He said that he accepted that the distress would be being caused, but if there was a prospect of the patient recovering, then it was right that that suffering should be effected on the patient. He summarised his position in this way:
"I personally think - I quoted that figure because that was the figure that was in the paper in the Intensive Care journal. I personally think, and I say in my report, his prospect of getting out of ITU alive are less than 30 per cent. I would not like to put a figure on it, but I think they are less than 30 per cent - probably significantly less than 30 per cent. But the actual figure that the relatives and professionals would accept is a judgment for them to make, not for me to make. I can only say that I do not think Mr A has more than, say, a 20 per cent to 25 per cent chance of getting out of ITU alive. If you think that is an unacceptable possibility then that is your judgment. My definition of him getting out of ITU alive is that he would be capable of maintaining his basic physiological functions. In sum, without invasive support he would need to be on ... he would need to be on cardiac support with drugs, and he would need to be on dialysis. Beyond that I would be anticipating him being able to lead ..."
and then the recording fades.
- The judge asked how he saw the future if the intensive care was to continue, and he said:
"I think the situation should be reviewed by his caring clinicians and the relatives on a very regular basis, and they then make an assessment of whether he is not moving at all, whether he is deteriorating, or whether he is actually showing signs of getting better, and the judgment about whether or not he was deteriorating would be based on ... Plainly if he were very ill there would be a strong indication of the possibility of ... If he were not getting worse ... or if there were signs of him getting better, then the indications ..."
and again the recording fades out. That concluded his evidence.
- So far as the judge was concerned, he had before him a very great deal of medical evidence. He had both the reports and the evidence given by video link, and that included evidence of the clinicians and nurses who were actually treating Mr A and had actually treated Mr A over a period of I think some seven weeks, but it is certainly some weeks. Those clinicians and those persons treating Mr A were taking the view that the intrusive measures were putting Mr A through considerable discomfort. They were of the view that the chances of that treatment (that is preserving Mr A in the ITU with all the intrusive measures that would be adopted) producing the result of any reasonable quality of life as being very low. They were of the view that it was in the best interests of Mr A that he should not continue to be put through the considerable discomfort, and have palliative care which would enable him to die peacefully and with dignity.
- Secondly, that view was supported by two persons who had not actually treated Mr A, that is Dr R and Dr PS.
- Thirdly and most compellingly, that view was supported by Dr B, a totally independent expert who had been consulted by the Official Solicitor. His position was in a nutshell that he had advised at an early stage that certain treatments should be administered to see whether that improved Mr A's condition. Following that, and following that treatment in his view not having improved Mr A's condition, indeed his condition having got worse, he expressed the very strong views that he did, first in his supplemental report and then in the evidence he gave.
- Then the judge had the evidence of Dr R. Dr R was a lone doctor taking a view quite contrary to the view of all those to whom I have referred. Dr R had seen Mr A on 21st August, but he had not in fact examined him. Even Dr R gave Mr A only a very low chance of some recovery. His evidence was not as clear as it might be as to precisely what the position would be for Mr A with a longer stay in the intensive care unit. It was not precisely clear how much dialysis he then thought that Mr A would need if he ever came out of intensive care, although it is right to say that in his evidence he came down to saying it might be down to two or three times a week, but in his report it appeared that he was saying that he would need fairly permanent dialysis.
- It is also fair to say that Dr R does not in his report, nor indeed in his evidence, explore fully the concept of best interests in the sense of balancing the distress that Mr A may be suffering as a result of the invasive treatments with the chances of some form of recovery. It does seem that he was very much influenced by the concept of what he described as giving the benefit of the doubt to the patient, or giving the benefit of the doubt to the views of the family.
- I can say straightaway that when one examines the law, one finds obviously that the views, if one can interpret them, of what the patient might be and the views of the family are highly material factors. At the end of the day they are not however the governing factors when considering best interests.
- It is in that context that I can therefore turn to the law. It is not in issue that the correct question to be asked is: is it in Mr A's best interests that the treatment which is at present prolonging his life should be continued? The debate, such it has been, has been as to precisely how the court should approach the concept of best interests and whether Kirkwood J was right in his approach.
- Mr Glancy's submissions, for the family, are to the effect that the question of best interests should be tested simply by reference to what is termed the Bolam test. He submits, therefore, that if there is a responsible body of medical opinion which would not withdraw treatment, then it follows, he says, that it cannot be in the patient's best interests to withdraw that treatment. He submits that Dr R is a responsible doctor, and he thus represents a responsible body of medical opinion. He therefore says that the judge was not free to reject Dr R's view. He submits, furthermore -- and on this there is no dispute -- that best interests go wider than medical interests and include religious views, the views of the family and, so far as they can be ascertained, what would be the views of Mr A himself. He submits that the judge in his judgment gave either no weight or inadequate weight to those matters.
- The argument of Miss Powell (supported by Mr Mylonas for the Official Solicitor) and that fact alone is not unimportant is, first, in so far as the Bolam test might be relevant it is posing the wrong question whether withdrawal of treatment would be supported by a responsible body of doctors. The true question is whether the continuing of treatment is lawful. But, more importantly, the submission is that if there is a conflict as to whether the treatment could be justified, and since logically there can only be one best interest, and since best interests go wider than medical interests alone, it cannot be for a doctor or one doctor to decide best interests: it is for the court to decide what is actually in the best interests. In any event it is submitted that there is no reason why in this area, as in any other, a court is not entitled to weigh the evidence given on the one side and the evidence given on the other, and no reason why a court is not entitled to reject the evidence given by Dr R.
- The most helpful authorities to which we were referred were, first of all, the House of Lords' decision in Airedale NHS Trust v Bland  AC 789; the decision of the Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment)  2 WLR 140; Re S (Adult Patient: Sterilisation)  Fam 15. We were also referred most recently to the transcript of the decision of Hedley J in Portsmouth NHS Trust v Wyatt & Wyatt  1 FLR 21.
- Having regard to the lateness of the hour, I am not going to make lengthy citations from those authorities. It seems to me that in Bland, all their Lordships were of the view that the question that they had to answer in that case in relation to Anthony Bland, who was in a permanent vegetative state, was whether the continuation of life support was in his best interests. If it was not in his best interests to continue that support, then their view was that it was lawful to withdraw it. They reached that position, as I understand all their speeches, on the logical basis of: (1) it is only lawful to treat an unconscious patient who cannot consent to treatment when it is in his or her best interests to do so; (2) if it is no longer in a patient's best interests to be treated, it is no longer lawful to treat them and it is therefore not unlawful to discontinue.
- In that case all the medical opinion was one way. One finds statements of Lord Browne-Wilkinson, and possibly Lord Goff, to the effect that, since the correct test as to whether it is in the best interests of the patient for treatment to be commenced to be governed by what is called the Bolam test, the same test can be applied in considering whether it is right to withdraw. That is particularly apparent from the statement of Lord Browne-Wilkinson in a passage at page 883F-884A.
- However, in Bland it was also recognised that there are different kinds of case where the court has to consider best interests of an incompetent patient. In Bland one had a patient in a permanent vegetative state. Lord Goff at page 868 recognises that there is a distinction to be drawn between:
"(1) cases in which, having regard to all the circumstances (including, for example, the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of the life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment, and (2) cases such as the present in which, so far as the living patient is concerned, that treatment is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition."
- What Lord Goff makes clear is that in Bland they were not concerned with the first type of case, although he cites from the judgment of Taylor LJ in Re J, relating to the first class of case. He cites the passage at page 55 where Taylor LJ said:
"I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child."
- What Lord Goff then said instead Bland was not concerned with that type of case, but he does not intend to express any opinion and he is certainly not intending to cast any doubt on Re J.
- Re J does cover the type of case with which we are concerned. In Re J the position was that the court was concerned with a small child and was concerned with whether resuscitation or mechanical ventilation or invasive procedure should be used, having regard to the quality of life that the child would have in the future if the treatment caused that child to survive. There is a famous passage in the speech of Lord Donaldson MR (as Mr Glancy rightly said, it is a sad day, his death was announced today) which sets out the balancing exercise for the court at page 149.
- It is perhaps important to say this before citing that passage from his judgment. Both Bland and Re J demonstrate there is no absolute rule to prevent a court declaring that doctors may no longer need to give treatment, where the result of not giving the treatment will be to result in an earlier death of the patient than might otherwise occur. Mr Glancy sought to suggest, in his latest submissions, that there was an Article 2 point in this case. However, there is only an Article 2 point if the withdrawal of treatment would be unlawful. Bland and Re J made clear that there is no absolute in this area and there is a passage in the judgment of Dame Elizabeth Butler-Sloss P, in NHS Trust A v M and NHS Trust B v H  2 WLR 942 at paragraph 35 where she deals expressly with the Article 2 point and says:
"In a case where a responsible clinical decision is made to withhold treatment, on the grounds that it is not in the patient's best interests, and that clinical decision is made in accordance with a respectable body of medical opinion, the state's positive obligation under article 2 is, in my view, discharged."
- So there is no Article 2 point, unless the position be that the withdrawal of treatment would not be in the patient's best interests.
- Back to Lord Donaldson and the passage where he sets out the balancing exercise, it is page 149F where he says:
"This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but, even excepting the 'cabbage' case to which special considerations may well apply, it is not irrebuttable. As this court recognised in In re B., account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself. In re B. was probably not a borderline case and I do not think that we are bound to, or should, treat Templeman LJ's use of the words 'demonstrably so awful' or Dunn LJ's use of the word 'intolerable' as providing a quasi-statutory yardstick.
For my part I prefer the formulation of Justice Asch ... We know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life. As explained, this formulation takes account of this and also underlines the need to avoid looking at the problem from the point of view of the decider, but instead requires him to look at it from the assumed point of view of the patient. This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's, and mankind's, desire to survive."
- That formulation of the equation can, easily be adapted to the circumstances that exist in this case.
- While looking at Re J, it is right also to draw attention to the judgment of Taylor LJ, part of which was quoted in Bland. But in dealing with what was the point in that case of counsel as to the effect of the sanctity of human life on the sort of problem which the court had to consider, Taylor LJ said this at page 158D:
"Mr Munby argued that, before deciding against treatment, the court would have to be certain that the circumstances of the child's future would comply with the extreme requirements to justify that decision. Certainty as to the future is beyond human judgment. The courts have not, even in the trial of capital offences, required certainty of proof. But, clearly, the court must be satisfied to a high degree of probability."
- As the next passage in Taylor LJ's judgment indicates, there was in fact no dispute in that case so far as the medical opinion was concerned.
- That brings me to the circumstances of this case. What if there is a difference in medical opinion? Two authorities, as it seems to me, help on that. First, there is an authority which is not concerned with, as it were, a life and death situation. It is Re S. That was concerned with whether a mentally handicapped woman who could not decide matters for herself should have a hysterectomy or have inserted a coil which would need surgery every five years. The weight of medical opinion favoured a coil, but there was responsible medical opinion which also supported the hysterectomy, which was the preference of the mother of the woman.
- The judge at first instance declared that a hysterectomy would be lawful, leaving the question to be further discussed between the mother and the doctors as to whether it might not be better to have a coil. The Court of Appeal recognised that in such a case, where there could be two forms of treatment which could be said to be lawful in the Bolam sense, that logically there could only be one course which was in a patient's best interests. What the court there ruled was that it was for the court to decide what was in a patient's best interests. Dame Elizabeth Butler-Sloss P at page 27 said this:
"I would suggest that the starting-point of any medical decision would be the principles enunciated in the Bolam test and that a doctor ought not to make any decision about a patient that does not fall within the broad spectrum of the Bolam test. The duty to act in accordance with responsible and competent professional opinion may give the doctor more than one option since there may well be more than one acceptable medical opinion. When the doctor moves on to consider the best interests of the patient he/she has to choose the best option, often from a range of options. As Mr Munby has pointed out, the best interests test ought, logically, to give only one answer.
In these difficult cases where the medical profession seeks a declaration as to lawfulness of the proposed treatment, the judge, not the doctor, has the duty to decide whether such treatment is in the best interests of the patient. The judicial decision ought to provide the best answer not a range of alternative answers. There may, of course, be situations where the answer may not be obvious and alternatives may have to be tried. It is still at any one point the best option of that moment which should be chosen.
I recognise that there is distinguished judicial dicta to the contrary in the speech of Lord Browne-Wilkinson in Airedale NHS Trust v Bland  AC 789, 884,  1 FLR 1026, 1054-1055. The passage in his speech was not, however, followed by the other members of the House. Hale J in Re S (Hospital Patient: Court's Jurisdiction)  Fam 26, 32,  1 FLR 302, 308 followed the same approach. She said that, in accordance with the Bolam test, it followed that a number of different courses may be lawful in any particular case. That may be so, but I do not read Re F  2 AC 1 upon which she relied, as relieving the judge who is deciding the best interests of the patient from making a choice between the available options. I respectfully disagree with Lord Browne-Wilkinson and Hale J. I have had the opportunity to read Thorpe LJ's judgment in draft and I agree with his analysis. As I have set out earlier in this judgment, the principle of best interests as applied by the court extends beyond the considerations set out in the Bolam case. The judicial decision will incorporate broader ethical, social, moral and welfare considerations. ."
- Thorpe LJ explained the position at page 29:
"I would therefore accept Mr Munby's submission that in determining the welfare of the patient, the Bolam test is applied only at the outset to ensure that the treatment proposed is recognised as proper by a responsible body of medical opinion skilled in delivering that particular treatment. That may be a necessary check in an exercise where it would be impossible to be over-scrupulous. But I find it hard to imagine in practice a disputed trial before a judge of the division in which a responsible party proposed for an incompetent patient a treatment that did not satisfy the Bolam test. In practice, the dispute will generally require the court to choose between two or more possible treatments both or all of which comfortably pass the Bolam test. As most of us know from experience, a patient contemplating treatment for a physical condition or illness is often offered a range of alternatives with counter-balancing advantages and disadvantages. One of the most important services provided by a consultant is to explain the available alternatives to the patient, particularly concentrating on those features of advantage and disadvantage most relevant to his needs and circumstances. In a developing relationship of confidence the consultant then guides the patient to make the choice that best suits his circumstances and personality. It is precisely because the patient is prevented by disability from that exchange that the judge must in certain circumstances either exercise the choice between alternative available treatments or perhaps refuse any form of treatment. In deciding what is best for the disabled patient the judge must have regard to the patient's welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed, it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination. In my opinion, the Bolam case has no contribution to make to this second and determinative stage of the judicial decision.
- Re S was not concerned, as I have indicated, with a situation in which death might result. But there is the decision of Hedley J in Portsmouth NHS Trust v Wyatt & Wyatt. In that case there was a dispute between the doctors as to whether it was right to attempt aggressive invasive treatment, and it was a question of life and death so far as the child was concerned.
- It is unnecessary to go into the circumstances of the case. It is sufficient simply to say that Hedley J did choose between the opinions of the doctors. That case has gone to the Court of Appeal. They have not delivered a judgment yet. But, as we understand it, the decision of Hedley J has been upheld and that would seem to indicate that no principle was established in the Court of Appeal to the effect that one doctor could determine best interests.
- The position, as I see it, is that there is no reason in principle why the court should not assess the difference between medical experts. Indeed, since it is for the court to decide what is in the best interests of a patient, it seems to me that it would be contrary to its duty if it did not do so. Clearly, in a case which involves the possibility of earlier death if the invasive mechanical treatment is withdrawal, as Taylor LJ said in Re J, the requirement on the judge is to be satisfied to a very high degree of probability that the medical evidence which he accepts or prefers is correct evidence.
- As it seems to me, the judge in this case appreciated the very high degree of probability to which he had to be satisfied. What he did was to take great care in assessing the medical opinion which he had. Indeed, he made clear that if he had thought that Dr R's opinion of even a 20% chance with some quality of life was realistic, then he would not have granted a declaration. He assessed the quality of the medical evidence. What he concluded was that the main body of the evidence, those who were treating Mr A, supported by independent practitioners, including an independent doctor, Dr B, were more accurate in their assessment, both of the discomfort being suffered by Mr A in the intrusive treatments that he would have to continue to receive if he was kept in the intensive care unit, and as to the possible quality of what was left of the life of this 86-year old man. To a high degree of probability, the judge was satisfied the evidence of those doctors was to be preferred. He said "I have considered the volume of evidence on both sides. I ch a settled conclusion of which I am satisfied, and it is my duty to state it."
- If I may just return for a moment to what is Mr Glancy's fundamental point. He suggests that the view of one doctor can dictate what is in the best interests of the patient. That, in my view, simply cannot be right and the judge was right to reject their submissions. It overlooks, in my judgment, the role of the court completely. It is for the court ultimately, to judge in a case of this sort what is in the best interests of the patient, and that must involve the court in the exercise of assessing the medical evidence that it has. If to a high degree of probability it is satisfied that the medical evidence demonstrates that it is in the patient's best interests for the intrusive treatment to be withdrawn, then it is the duty of the court to say just that and hold that that is in the patient's best interests. It is that duty that the judge performed.
- The final criticism made by Mr Glancy is that the judge failed to take into account the family's feelings and their religious beliefs. The fact that the judge put these at the end of his judgment does not in my view show that he did not have them properly in mind. It should be remembered in particular that the treating doctors had themselves had very much in mind the religious concerns of the family, and indeed all the concerns of the family. He was clearly right to consider what was certainly the key question first, as to whether there was in his view any chance of recovery of any quality of life so as to make the discomfort to which Mr A was being put justified. Once he had formed that conclusion -- that it was not justified -- it was obviously going to be difficult for the religious views and the views of the family to overcome the obvious point that, since any decision to put Mr A through further suffering would produce no benefit to Mr A, it would be difficult to see that it could be in Mr A's best interests. But on any view he did consider the family's position and their religious beliefs.
- In my view, the judge performed the correct balancing exercise. He assessed the evidence very carefully. He was entitled to conclude, having taken all matters into account, that the Trust was entitled to the declarations that they sought, so that the doctors treating Mr A in the intensive care unit are not bound to continue to give invasive and uncomfortable treatment to Mr A where there is no benefit to him.
- These are hard cases for the patient, they are hard cases for the family and they are hard cases for those that have to treat the patient. My sympathy goes out to all, particularly the family and I hope that they can now accept that Mr A should be allowed to die peacefully and with dignity and without further suffering. In my view this appeal should be dismissed.
- LORD JUSTICE MUMMERY: I agree that, for all the reasons given by my Lord, this appeal should be dismissed. There is one aspect of the case, however, on which I wish to state some short comments in my own words.
- As Lord Justice Waller has explained, the essential issue in the case is whether it is in the best interests of the patient to withdraw the life-sustaining medical treatment described in the evidence and in the declaration granted by Kirkwood J on 26th August 2005.
- The judge had to decide what was in the patient's best interests, as the patient was not competent to decide for himself. The judge had to make that decision on the basis of all the evidence that was placed before him. Expert medical evidence was particularly important. In this case there was a responsible body of medical opinion, from both the NHS Trust, which had been treating the patient since early July 2005, and from an independent medical expert, Dr B, consulted by the Official Solicitor acting as the patient's litigation friend, that it was not in the best interests of this patient to continue with treatment, which the judge described as painful, uncomfortable and undignified.
- A contrary opinion was held by another medical expert, Dr R, who was consulted by the patient's family. That evidence was considered by Kirkwood J, but he did not accept it. In my judgment, the existence of the conflicting evidence of Dr R did not relieve Kirkwood J of the responsibility of deciding what course was in the best interests of the patient. Nor did it prevent the judge from deciding that it was in the patient's best interests that the treatment described should be withdrawn, contrary to Dr R's opinion.
- It is clear on the authorities, in both the House of Lords and in this court, that Kirkwood J had to make a decision based on a consideration of all the evidence, including conflicting medical opinion, as well as on evidence relevant to the patient and his family situation and other welfare considerations. As Dame Elizabeth Butler-Sloss P said in the case of Re S  Fam 15, 28, the judicial decision will incorporate "broader ethical, social, moral and welfare considerations".
- Mr Glancy, appearing for the patient's son, Mr SA, submitted that the court should apply what he described as the Bolam test to a situation such as this where there are conflicting medical opinions. The Bolam test was laid down in the case of Bolam v Friern Hospital Management Committee  1 WLR 582.
- Mr Glancy, in his written submissions, posed this question: should the minority view of Dr R be ignored in deciding what is in the best interests of the patient, when one is faced with a decision that so clearly affects life and death? Putting it another way, Mr Glancy also posed this question: if the court finds that there is a body of medical opinion (albeit a minority) which is respectable, responsible and reasonable, then is the court entitled, in approaching the question whether life-supporting treatment should be withheld, to ignore that body of opinion? He submitted that that would not be the correct approach, and that the minority of expert medical opinion should only be dismissed if it is unreasonable, and neither respectable nor responsible. He went on to submit that the judge had made no such findings in this case about the evidence given by Dr R. So he contended that Kirkwood J had erred in deciding the issue of best interests by approaching the matter on the basis of which medical evidence he preferred.
- I am unable, like Lord Justice Waller, to agree with Mr Glancy's criticism of Kirkwood J. Mr Glancy frankly accepted that the court must exercise its own judgment on the basis of all the evidence as to what is in the patient's best interests. In my judgment Kirkwood J did that. The criticism that he erred in not applying the Bolam test is misconceived. As explained in the judgments of Dame Elizabeth Butler-Sloss and Thorpe LJ in Re S, there is only a limited scope for very application of the Bolam test in cases where the issue before the court is whether the medical treatment of a patient, or the withdrawal of that treatment, is in all the circumstances in the best interests of the patient.
- It is important to remember that the Bolam test, formulated nearly 50 years ago, was in the context of determining the standard of care to be applied in cases of alleged medical treatment and diagnosis. The standard of care to be applied is of that "a respectable body of medical opinion". In cases such as this, the court is not, of course, applying a standard of care to determine whether past medical treatment has fallen below the standard of reasonable care. In deciding whether future treatment, or the withdrawal of it, is in the patient's best interests and therefore lawful, the court must, of course, be satisfied that the expert medical evidence in favour of a particular course of action is both responsible and competent. It cannot be in the interests of a patient for the court to act on medical opinion which is not responsible and competent. If the expert medical opinion is responsible and competent, the court is entitled to act on it, even if there is a contrary medical opinion. The court has to evaluate all of the expert evidence. In the case of conflicting evidence, it has to decide which evidence carries greater weight and is to be preferred.
- In a case such as this, where the survival of the patient is in issue, I would of course agree that the court must be satisfied to a "high degree of probability" as to what in the light of the conflicting evidence is in the best interests of the patient. The expression I have quoted is taken from the judgment of Taylor LJ in Re J  2 WLR 140, at 158D.
- In her excellent submissions, counsel for the NHS Trust proposed a two-stage approach which was based on the decision in Re S. The first stage would be to decide whether withdrawal of the treatment would be accepted as appropriate and reasonable by a responsible body of medical opinion in accordance with the Bolam test. The second stage would be whether or not the proposed course of action is in fact in accordance with the patient's best interests. The Bolam test would not, she argued, be relevant at the second stage. The court would at the second stage weigh the conflicting medical opinions and reach a conclusion as to which it preferred. On this approach Kirkwood J was entitled to act on the evidence of the doctors whose expert opinion was in favour of the withdrawal of treatment.
- For myself, I would doubt whether it is necessary to adopt a two-stage test, as there is in truth only one issue: what is in the best interests of the patient? If there is no respectable body of expert medical opinion supporting the withdrawal of treatment in a case such as this, the application by the NHS Trust would fail at the outset. Indeed, it is highly unlikely that such an application would ever have been made without a basis of solid medical opinion.
- In my judgment, the reliance which Mr Glancy has placed on the Bolam test in this case involves, as Mr Mylonas on behalf of the Official Solicitor pointed out, turning the Bolam test on its head. It is true that there may be cases involving right to life issues under Article 2 of the Convention in which there is a conflict of respectable and reasonable medical opinion that would lead the court to conclude that it is in the patient's best interests to continue with treatment and to refuse to exercise its discretion granting a declaration relating to the withdrawal of life-sustaining treatment as being in the patient's best interests. But that is not this case. This was a case in which the judge was faced with a conflict of medical evidence which he was entitled to resolve in favour of the applicant NHS Trust, and to conclude that in the patient's best interests the treatment described in the declaration should be withdrawn.
- For these short reasons, and for those given by Waller LJ, I would dismiss this appeal.
- LORD JUSTICE TUCKEY: For the reasons given in both judgments, I agree that this appeal should be dismissed.
ORDER: Application for permission to appeal granted; appeal dismissed; the Legal Services Commission to pay the Respondents' costs, to be the subject of a detailed assessment.
(Order not part of approved judgment)
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