Update to main text para 13.11, page 399: Withdrawal of treatment in MCS
Abertawe Bro Morgannwg University Local Health Board v RY & CP  EWHC 3256 (Fam)
Decided only months after Briggs and Baker J’s Oxford speech (see main text at para 13.13.), this unsuccessful application for withdrawal of life-sustaining treatment (namely, deep suctioning to keep patent a tracheostomy tube and thus RY’s air way) is the near mirror image of Briggs in factual terms. It is also a salutary illustration of the almost unique challenge MCS poses to those evaluating the burdens and benefits of life-sustaining treatment, given our very limited understanding of the life experienced by a patient in a prolonged disorder of consciousness.
RY was 80 years old when, in June 2016, he collapsed in the street following a heart attack. A member of the public was able to resuscitate him but by that time, RY’s brain had been deprived of oxygen for 30 minutes and the resulting hypoxic damage was catastrophic. The applicant, the local Health Board, considered that RY was in the PVS but that diagnosis was challenged by RY’s daughter, CP. CP was also emphatically clear that her father’s Christian belief meant that he would have wanted his life to continue even if meagre in quality. In due course, RY was weaned from the ventilator; on assessment, MCS was diagnosed by two separate experts, for the health board and for CP. The final hearing in January 2017 proceeded on the agreed basis that RY had an expectation of about another 6 months of life. In the months since his brain injury, he had lost significant muscle mass, his skin was extremely thin, he had developed a pressure sore, there were contractures and the immune system was compromised. Further physical deterioration was anticipated and his potential for improved awareness was limited. This was the context in which Hayden J approached the family’s evidence as to wishes and feelings. He considered that evidence problematic and unreliable, and found that he simply did not know what RY’s wishes and feelings might be. Examining the clinical evidence as to burdens and benefits, the judge found that deep suctioning caused pain and did not improve RY’s quality or expectation of life. Nevertheless, Hayden J refused the application, giving two reasons. The first was that he thought it appropriate to allow a short period for all the parties to reflect on his judgment. In particular, CP might wish to reflect on the realisation, which came late in the day, that deep suctioning caused pain and came not ‘by act of God’ but ‘through the intervention of reasonable and well intentioned medical treatment’. The second was the clinical evidence that deep suctioning had not in fact been required for several days in the run up to the final hearing, so that the current treatment was delicately poised between what was “burdensome” and “overly burdensome”. Having no reliable evidence as to wishes and feelings, the Judge considered that the balance fell in favour of supporting life.