If proof were needed that Bland has politely been consigned to the history books, it can be found in the decision in Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG & Anor  EWCOP 21 which appeared on Bailli today (25 June), several months after being decided in February 2019.
The case concerned the question of whether it was in the best interests that intubation to continue for a woman, TG, an inpatient in the critical care unit of the Royal Bournemouth Hospital. TG had been at church 16 December 2018 when she collapsed, having suffered a massive subarachnoid haemorrhage, and then a secondary cardiac arrest.
Some 8 weeks later, TG still had her endotracheal tube in place. She was attached to a ventilator but received little support from it in the sense that it was not something that appeared to be an important part of keeping her alive and it was anticipated that she will be likely to be removed from it within the near future. The scans which have taken place and the EEG sequences show that TG had suffered severe cerebral dysfunction and that there is very extensive damage to the cerebral cortex. There were no wave patterns which suggest sentience. She was in a vegetative state at the moment. She had eye opening and blinking and had some movements to her right shoulder and neck area. It did not appear that her level of consciousness or the degree of responsiveness hadchanged significantly over the course of the eight weeks since her arrest.
The agreed medical evidence, including from the independent expert, was that the chances of meaningful improvement were very small and there was no chance of meaningful recovery. The independent expert considered that there was
8 […] a small chance of recovery to MCS minus which would be the best outcome. If that happened, she may be able to have awareness of pain but nothing more than minimal consciousness at a very low level.
9. There is, he says, no chance of her recovering to a stage of MCS plus, a level which might permit very simple vocalisation and answers to basic questions and the ability to recognise someone who was close to her. That would, at best, enable her to follow with her eyes or respond to pain or touch but he says, in this case there is no chance of that degree of recovery being reached. He says her memory will almost certainly completely have disappeared and her previous personality will not emerge.
10. His view, shared by the other professionals who have expressed their opinion, is that it is not in her best interests to continue with intubation and that nature should be allowed to take its course with the likely result of an early death.
What was not being said on the face of the judgment, either by the Trust or the expert, that continued intubation would either (1) be clinically inappropriate; or (2) would be physiologically futile in the sense of not continuing to keep her airways clear.
The neurological expert expressed the view that, if contrary to his advice, intubation considered, it would referable in the near future for discussions to take place with the family with a view to a tracheostomy. If successfully done, his view was that this would :
11. […] enable, at least in theory, a range of other options for her care because at the moment she is confined and has been since admission to the critical care unit. If a tracheostomy succeeded then it may be that care in the community, either in a special nursing home or at home might become possible. If the tracheostomy became complicated and caused problems, that may mean that she would have to remain in hospital, albeit in a less acute unit.
Although not stated expressly on the face of the judgment it is clear that the Trust – rightly – brought the application following because, as had been identified by the Supreme Court in NHS Trust v Y  UKSC 46, at the end of the medical process there was a lack of agreement between the Trust and family.
The Trust took the view that there was no benefit in the continuation of treatment except the fact that TG would remain alive. Relying upon the decision of the House of Lords in Bland in which there was no prospect of any improvement in the patient’s position,
18. […] by analogy the Trust sought to persuade me that medical treatment should not be persisted with when it is futile and secondly, that the patient in this case, as in Bland, would be completely indifferent to the medical treatment, whether it continued or not and whether she remained alive or not.
However, Cohen J identified that:
18 […] that case needs to be seen on its facts. It was, of course, a case decided before the arrival of section 4 of the Mental Capacity Act, to which the individuals wishes, feelings, beliefs and values are central feature. Certainly, in the Court of Appeal judgments in Bland, Butler-Sloss LJ as a starting point, put at the centre self-determination, and I return to that in a moment.
19. The law has moved on since Bland and there are two other passage of the authorities of particular relevance. The first is paragraph 62 of Briggs (no. 2)  4WLR 37, where Mr Justice Charles said this:
“But in my view, when the magnetic factors engage the fundamental and intensely personal competing principles of the sanctity of life and of self-determination which an individual with capacity can lawfully resolve and determine by giving or refusing consent to available treatment regimes:
(i) he decision maker and so the judge must be wary of giving weight to what he thinks is prudent or what he would want for himself or his family, or what he thinks most people would or should want, and
(ii) if the decision that P would have made, and so their wishes on such an intensely personal issue can be ascertained with sufficient certainty it should generally prevail over the very strong presumption in favour of preserving life.”
20. These matters were also considered in the case of Lambert v France  30 EHRR 346 (application number 46043/14), a judgment delivered by the European Court of Human Rights in June 2015. At paragraph 142 the court said this:
“In a case such as the present one, reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses. In Pretty the Court was not prepared to exclude that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for private life as guaranteed under Article 8 of the Convention. In Haas it asserted that an individual’s right to decide in which way and at which time his or her life should end was one of the aspects of the right to respect for private life.” (emphasis added)
Cohen J therefore delved into TG’s wishes, although before doing so he noted that he did not consider that the issue of indignity was one that featured large in this case, arriving at that conclusion for a number of reasons:
22. […], first of all it is quite clear from the statements made by the family and friends that personal dignity is not something that featured large in TG’s life or thoughts. Secondly, I am satisfied that the issue of pain is not one that impacts in this case as it is not felt by the patient. If pain does emerge, as it might if she were to regain a minimal degree of consciousness, that should be amenable to treatment with medication
Praising the quality of the statements of TG’s husband and son, Cohen J noted that they had two principal strands:
24. […]. They have two principal strands: first, that if her presence was a comfort to others (as I find it to be) she would want to be there whatever the cost to her. Family was central to her and she would want to remain a part of the family no matter what form it would take for as long as possible. Secondly, she had the utmost respect for life because of its intrinsic value and that it was for no-one other than the Lord to take away. It is for Him alone to end and she would never accept anyone else facilitating death. I also take into account the statement of her friend M who had a discussion with her about Dignitas in the context of a programme on television and she recalls TG saying, “Why do people want to go?” before adding something like “They’re not God and they don’t know what will happen in the future.” It is absolutely clear from everything that I have read that her Catholic faith and her belief in God were and are a crucial part of her life.
Cohen J agreed that this represented “compelling evidence” that TG would not have consented to the withdrawal of intubation, and that her wishes and feelings and beliefs and values were plainly for the continuance of life. He noted that he had:
- […] asked counsel if they were aware of any case in which the court has terminated life support against the wishes of the patient and they were unable to tell me that there ever was one; with the quality of expertise before me I am sure that there must therefore not have been such a reported case.
Into the mix Cohen J also put the fact that he was being asked to make the decision two months after injury when the Royal College of Physicians’ guidance indicated that in the case of a non-traumatic injury such as this, six months is required before a vegetative state is regarded as being permanent, such that he was being asked to make a decision at a point when it was possible that when it was possible that TG might make some recovery and be able to return to live at home even if she would be unaware of the fact.
The balance sheet identified by Cohen J (reconstructed here from continuous prose) was as follows:
|Benefits of removal of tube||Benefits of maintenance of tube|
|First, it would be the end of the process which brings, or is likely to bring no significant benefit to TG.||On the other side there is the continuation of life
|Secondly, it removes the possibility of indignity and/or pain.||there is the recognition of her wishes for herself and for her family|
|thirdly, it enables her life to progress and be ended in accordance with the will of God|
|fourthly, it permits the possibility, faint though it may be, of some improvement in her state and|
|fifthly, although this may be repetitious, it provides the ability for her to play a part in her family as she and they would wish, even though she would be unaware of it.|
Cohen J therefore came to the:
30. […] clear decision that it is in the patient’s best interests that intubation should continue. I recognise that this places a huge burden on the treating team. It is against their advice and their wishes and of course also those of Dr Newman but I remind myself constantly, this is her life and her wishes as I have found them to be and nobody else’s. It may be that if the position were to remain the same in six months’ time or no successful tracheostomy had been carried out that different considerations might apply but I am not looking at the future, I am looking at things as they are now and for those reasons I reach my decision and refuse the application.
It is clear that the courts in this context now take very seriously their task of starting with the person’s known wishes and feelings and following the logical implication of those wishes and feelings to their end. That can mean stopping treatment even in the face of opposition from a ‘pro-life’ team; conversely, as in this case, and as in HB (about CPR) taking the court on P’s behalf very close to (but not quite over) the line of dictating to clinicians to provide treatment that they do not consider to be beneficial. It is undoubtedly the case, as Cohen J has identified, that the law has therefore moved on substantially since Bland, both in the increased focus on the (near) determinative place of wishes and feelings, and in the narrowing of futility from the broader concept of not providing wider benefit to the question of whether the intervention in question would actually work – in this case, to keep TG’s airways clear.
For my part, I would hope that when the CRPD Committee come to consider the complaint against France in Mr Lambert’s case, they adopt an approach that in substance, if not in form, identical to this, as complying faithfully with the (facially) competing demands of the Convention – demands that are being considered further in collaborative work that I am undertaking at present.