Alex RKIn Sandwell And West Birmingham Hospitals NHS Trust v TW & Anor [2021] EWCOP 13, Hayden J considered a version of a dilemma that presents itself frequently in clinical settings, although rarely so starkly: should treatment continue solely to allow family the time to be with the patient before they die? The case concerned a man, TW, who had suffered a catastrophic brain injury after a stroke at the age of 50. The view of those caring for him in the intensive care unit was that the interventions that they were carrying out – suctioning his airways and providing every aspect of his personal care – were sustaining the life of his body, but were no doing no more than that. Absent ventilatory support, he would be likely to die within minutes, but at most would not survive for long enough to be discharged from hospital, even to a hospice. It is not immediately obvious why his position was brought before the court, but it appears that it must have been a result of the fact his family (in different ways and for different reasons) did not agree that continuation of life-sustaining treatment was no longer in his best interests.
As Hayden J identified, following the medical evidence, the family’s views appeared to diverge, but he did not see this as a conflict. TW’s wife and his brother “cling to a hope for recovery which cannot be founded in the evidence. [His three adult] daughters acknowledged the force of the medical reasoning and recognise it as irresistible.” However, TW’s daughters, giving evidence together and remotely from Canada:
ask[e]d only for the chance to say goodbye to a much-loved father. It is the most natural and instinctive request. It is what most families would want. It is what any doctor would want to be able to facilitate, and it is what any judge would want to be able to achieve. I was struck by the way N put it: it was not merely what they wanted, she told me, it is what they knew their father would have wanted. It was, as she described it, a facet of his rights, and his dignity, at the end of his life, that she wanted to be able to deliver. Even in these unbearable circumstances the daughters focused not on their own needs but on what they believe to be their father’s needs. I have no doubt that TW would have been immensely proud of his daughters’ courage and, if I may add, rightly so. (paragraph 28)
Hayden J found that this request was so “powerfully and compellingly advanced” that he returned to the Trust’s Counsel to explore whether this position, which had changed from the case advanced could be put separately to the doctors. TW’s doctors gave further evidence, and Hayden J himself visited TW remotely in the hospital, observing that “[t]his is an ICU ward in the middle of a pandemic, and it was impossible not to be struck by the exhaustion of all those involved. Their attention to TW, their commitment to their patient, their sensitivity to his welfare and privacy, revealed to me that even in these most distressing of circumstances, they had provided not only for his medical care, but had been vigilant to preserve his dignity as a human being” (paragraph 30).
When Hayden J heard from Dr A, TW’s consultant neurologist:
31. […] Dr A became emotional. It was the emotion, in my view, of a senior, dedicated, Consultant who had been working at an extraordinary rate for many months, in the most difficult of circumstances, and who as a human being was genuinely moved at being unable to facilitate a level of contact at the end of life that would have been his instinct as a doctor as well as a human being. His sympathy to the family was manifest. It was equally clear in the evidence of the other doctors, though expressed in different ways. Dr A impressed upon me the extent to which those working in ICU encounter death on a daily basis and in isolated circumstances. He told me that he had seen more deaths in the last twelve months than in the rest of his career put together. I gave a great deal of thought to N’s carefully phrased request and to the equally powerful evidence of M and S. I wondered if it might be possible to achieve that which they desired.
32. I cannot imagine a more difficult situation for a doctor than being in the witness box and having to confront this intensely modest and heartfelt request whilst being required to evaluate it against the broader medical context for his patient. The tension between basic human kindness, and professional, ethical responsibility, was exquisitely balanced. Dr B unwaveringly focussed upon his patient, whilst recognising the immensity of the tragedy unfolding. Key for him is the fact that TW has reached a stage where his situation, medically, is properly to be described as “precarious”. Despite the best efforts of the team, and the commitment that I have outlined, there have been circumstances, in recent weeks, where even the professionalism and care of this team has not been wholly able to preserve TW’s dignity.
Hayden J noted that increasing medical interventions were being required to maintain TW’s life. Although TW was not thought to felt pain, Hayden J was clear that:
33. for it to occur in circumstances where treatment can achieve nothing, I consider that Dr B is right to recognise this as a compromise to his patient’s dignity. The precariousness of TW’s situation means that it is likely that he will sustain cardiac arrest and other infection which will require invasive treatment. In gentle and sensitive terms both Dr A and Dr B intimated that to require them to provide treatment in these circumstances, which they assess as contrary to TW’s interests, comes perilously close to, if not crossing, an ethical boundary.
TW’s daughters lived in Canada, along with his second wife. Because of the pandemic travel restrictions, it was thought impossible to be able to arrange a visit in under three weeks. TW’s situation is such that he would likely require invasive intervention in this period. In particular, further cardiac arrest is foreseeable. Hayden J was clear that:
34. […] Cardiopulmonary Resuscitation (CPR) to a patient in TW’s circumstances has now become inappropriate, in the sense that it serves only to compromise his dignity whilst achieving nothing by way of treatment. I am ultimately satisfied that any plan artificially to sustain TW’s situation to enable his daughters or wife to come over from Canada would be inimical to his best interests at the end of his life. Although I have been deeply moved by the evidence of these three impressive young women, I am ultimately unable to yield to their request, whilst fulfilling my obligations to their father. The medical evidence indicates that he would not know of their presence beside him.
In the circumstances, Hayden J was clear that the continuation of ventilatory support and likely invasive treatment can no longer be reconciled with TW’s best interests, and endorsed a palliative plan providing for the withdrawal of ventilator support.
Comment
As noted by Hayden J, in ‘ordinary’ circumstances, doctors would do all that they could to sustain life so as to allow family to gather to say goodbye. In reality, this is – understandably – as much in the interests of the family as it can properly be said to be in the best interests of the person themselves (save and to the extent it could be identified that the person would wish to be kept alive so that their family could be with them). As with so many other areas, the pandemic is stress-testing ordinary practice almost to its limits, and it has hardly surprising that Dr A found it so challenging to have to confront head on the fact that in this case securing TW’s continued life could be seen to be achieving nothing save compromising his dignity. Although, perhaps understandably, Hayden J did not push matters, he would have been very well aware that seeking to require the team to keep treating in such circumstances would have been to cross the line to require the doctors to treat in circumstances which they considered to be clinically inappropriate, a line which the Supreme Court has confirmed should not be crossed (see Aintree at paragraph 18) Even if, in very many cases, the line between best interests and clinical appropriateness now seems to be very thin, this case is a reminder that, ultimately there is a line, and clinicians both can – and where appropriate – should make clear when they are being asked to cross it.
