In Re NZ  EWCOP 16, Hayden J had to address, in even more acute form, the dilemma that he had addressed in Sandwell And West Birmingham Hospitals NHS Trust v TW & Anor  EWCOP 13: the point at which continuing medical treatment can no longer be said to be appropriate. The facts of NZ illustrate the cruelty of the COVID-19 pandemic: a Muslim woman in her 30s took all the steps that she could to avoid catching it. She contracted it, however, and was admitted it to hospital. At that point, she was 32 weeks pregnant. Her condition deteriorated rapidly; after her son was delivered by Caesarean section, she was transferred to an intensive care unit, where she was started on extracorporeal membrane oxygenation (‘ECMO’), described by the director of ECMO at the Trust as effectively the last resort treatment. ECMO, the court was told, was, until recent times, only really been considered as a viable option for patients who are otherwise regarded as fit, prior to their admission. It is only generally used for patients whose clinical condition places them at a 40% (or lower) chance of survival, despite having received all other intensive care treatments. During the course of the pandemic, the use of ECMO has increased approximately by a third. On average, 25% of patients do not recover. However, those patients who are placed on ECMO in consequence of conditions which are sequelae of symptoms arising from Covid-19 infection, have lower success rates than previously seen with other conditions. The director of ECMO at the Trust gave evidence that fewer than 50% of ECMO patients had been recovering in this second wave of the pandemic.
During the course of NZ’s treatment, regular scans showed that NZ’s pancreas had ceased to function, part of her left lung had died, and the remaining lung tissue had become ‘densely consolidated or collapsed’. In addition to the death of those parts of the left lung and the remaining lung damage, there were signs of pneumothorax and evidence of pooling of blood, caused by the invasiveness of the ECMO procedure. The treating team had started plans for a final visit for the family, but it then became clear that the family did not agree that continued treatment was not in her best interests.
The Trust therefore made an urgent application to court to endorse the plan to stop ECMO and move NZ to a palliative pathway.
The position of the Trust, explained by Dr H, the director of ECMO, was that, whilst there were patients who had stayed longer on the ECMO machine than NZ had yet done, they were all patients in whom a trajectory of improvement is identified relatively quickly, and that:
19. […] having regard to the views of the clinical team and to the second opinion from Professor A, he had come to the conclusion that he had passed a stage where he was seeking to preserve his patient’s life, but had reached a point where he was, in reality, ‘prolonging her death’. Though he expressed himself in sensitive terms, he signalled, to my mind, unambiguously, that he had reached a threshold beyond which further treatment would be professionally unethical.
NZ’s husband and sister took a different view, as Hayden J explained:
20. This is not grounded in any real difference as to the medical situation; it is, for them, a conflict between a religious belief, genuinely and devoutly held, and medical science. It is a conflict which cannot be reconciled. To condone any act that would be seen to bring life to an end would, the family believe, be inconsistent with their faith. They recognise the medical evidence and engage with it. In particular, they accept that continuation of treatment may cause NZ to suffer but consider that such suffering is the will of God and attracts God’s love. MA told me that such suffering is to be welcomed and that NZ would welcome it. It is through suffering that we know God, he explained. This principle echoes not only throughout Islam, but throughout the whole of the Judeo-Christian tradition. It poses real ethical dilemmas for those who understand their faith in these uncompromising and uncompromisable terms. I do not doubt that these are the genuinely held beliefs of NZ’s husband. Her sister also articulated them with equal force, though I note she required to be prodded to do so by her brother-in-law. I think it is likely that NZ, had she confronted this dilemma, would, in principle, have expressed the same religious view as her family. I am quite sure that she would have wanted to do all that she could to be with her children.
Addressing these two positions, Hayden J emphasised that evaluation of best interests
21. […] is not confined to medical opinion alone, nor religious beliefs in isolation, nor even an assessment of wishes and feelings. Identifying best interests requires the broad canvas of NZ’s life, circumstances and needs to be considered in their totality. Alongside this it must also be recognised that a court will never seek to compel or encourage a medical professional to act in a way that he or she considers unethical. The central imperative in medicine is to do good. Here the medical evidence establishes that continued ECMO treatment would achieve no benefit and cause continuing, potentially escalating, harm. I accept that evidence.
Hayden J’s conclusion was therefore, whilst reached reluctantly, inevitable:
29. This is a young woman whose life and hopes have been extinguished by this insidious virus. It is a tragedy of almost unbearable dimension. A young family split apart prematurely; their grief is raw and palpable. It is almost beyond human empathy; the pain is so obvious and visible that there is an instinct to seek to recoil from it. As I have set out, the care plan contemplates that NZ and her family will be together at the end. It is structured to avert further pain and its central premise is to promote NZ’s dignity at the end of her life. The objective here is not to shorten her life, but as Mr H has, in my judgment correctly identified, to avoid the prolongation of her death. NZ will have her husband and family with her at the end. That is a right that many have, of necessity, been denied in the last 12 months. Their loss has underscored the importance of this final contact for those for whom it can be achieved. I should like to say finally, that RZ and MA could not have expressed themselves more forcefully, sincerely or with greater eloquence. They could have done no more for their wife and sister and I hope that brings some peace for them.
Over and above the personal tragedy at the heart of this case, it shows not just the extraordinary measures (in every sense of the word) being required to meet the needs of patients with COVID-19, and how even those measures cannot guarantee success. It also reinforces the extent to which law and ethics run side by side in intensive care. As in TW, Hayden J’s decision in this case shines a spotlight on a clinical dilemma that arises very frequently (although normally under less fraught circumstances than at present) – i.e. the point at which continuing treatment is felt by the doctors is felt not just to be doing no good, but actively to be causing harm. In the majority of these cases, a resolution is ultimately reached without the need to come to court – and here is a good place to highlight that mediation can play a hugely important role – but ultimately, a judge may need to be involved. The court can, and will, probe the reasoning of the medical team, and should challenge their decision-making if and to the extent it is based (for instance) upon incorrect assumptions about the patient’s wishes and feelings or how the patient would judge the quality of their own life. Ultimately, however, and just as would be the case with a patient able to speak for themselves, the fact that the patient’s voice is being relayed by others on their behalf, does not mean that the team can be required to act against their clinical conscience.