“A. MA, VA’s daughter, has informed the Trust’s solicitor and the Official Solicitor caseworker that she represents the views of the whole family, and they are all in agreement that a tracheostomy and percutaneous gastrostomy (“PEG”) tube is what VA would have wanted and is in her best interests. B. MA has also informed the Trust’s solicitor that she will maintain communication with the Trust going forward to avoid future disagreements and that she would like the court to endorse the care and treatment plan (which included the insertion of a tracheostomy and PEG tube, and that VA will not be readmitted to the ICU for ventilation or other invasive organ support). C. MA has informed both the Trust’s solicitor and the Official Solicitor caseworker that the family wish the proceedings to conclude. D. VA’s clinicians have agreed with the family that they will carry out an MRI scan before she is discharged from ICU. E. A DNACPR has been put in place for VA on6 April 2023 .”
“The appearances on the MRI scan indicate devastating damage to the cortex, subcortical regions, deep grey matter, descending tracts and brainstem. There is also extensive vascular disease. In addition there is extensive loss of brain tissue due to necrosis and subsequent atrophy affecting the cortex and ventricles. The clinical findings and the MRI appearances are incompatible with this poor lady being able to make any form of neurological recovery from her present state. There is no doubt that her brainstem is still functioning. There is no immediate prospect of cardiac or respiratory arrest as a consequence of the brain injury but she remains profoundly vulnerable to the complications of being in a permanent profound vegetative state of wakeful unawareness (as defined in the RCP Prolonged Disorders of Consciousness guidelines).”
“VA no longer needs the ventilator to support her breathing. She is breathing on her own but because she currently has an endotracheal tube that connects her to the ventilator, that also needs to be removed when the ventilator is removed. Unfortunately due to her devastating and irreversible brain injury it is likely that when the endotracheal is removed, she will have difficulty in clearing oral secretions which could subsequently block her airway (windpipe) and compromise her ability to breathe for herself. In people with no brain injury they are able to clear their oral secretions spontaneously when the endotracheal tube is removed due to normal physiological reflexes. Due to the severity of her brain injury, it is likely that VA no longer has these protective reflexes. Many would consider this as an unfortunate consequence of her severe brain injury and accept the risk that removing the endotracheal tube could result in her life being shortened but that this is the natural consequence of the irreversible brain injury and would allow comfort and palliative measures to be put in place. The placement of a tracheostomy overcomes the risk of her not being able to manage her own secretions when the ventilator is removed as it acts in a similar way to the endotracheal tube, having a cuff in the airway that reduces significantly the risk of unmanaged oral secretions obstructing the airway. It allows the disconnection of the ventilator as the patient can breathe unaided through the tracheostomy. It also avoids the risk of oral sores caused by the endotracheal tube and the ties used to secure it in the mouth. There are however small risks with placing a tracheostomy as it is a surgical procedure. The tracheostomy may well lengthen her life in terms of reducing the risk of airway compromise due to oral secretions and slightly reduce the risk of recurrent pneumonia but it does not treat or change the outcome from her devastating brain injury. The tracheostomy may lengthen her life but will not improve her quality of life or comfort. It would allow placement in a longer-term care facility that would meet her nursing needs. As explained on numerous occasions … VA has remained in ICU far in excess of what would be considered as clinically appropriate. She is currently mechanically ventilated purely to overcome the resistance from the breathing tube in situ. VA can breathe herself and does not require mechanical ventilation. She requires no artificial organ support and consequently there is no therapeutic benefit to her remaining in ICU. To be stepped down from ICU she requires disconnection from the ventilator. This can either be by way of extubation or by the insertion of a tracheostomy which will leave her less susceptible to secretion retention and airway obstruction.”
“8. If VA’s condition deteriorated on the ward to the point of requiring invasive organ support on intensive care again then it is the view of the intensive care team that this is not an appropriate escalation of therapy for this lady. She has a profound neurological injury that has left her in a persistent vegetative state; re-escalating organ support in the event of deterioration would only serve to potentially increase the length of her life for a period and not offer any benefit in terms of neurological recovery. 9. There is a considerable burden to instituting organ support in any patient, requiring painful and invasive procedures. In a patient who cannot consent to these, and has no prospect of recovery beyond a vegetative state, then it is the view of the Intensive Care team that the burden of instituting invasive organ support outweighs the benefits gained from it. … 12. A repeat MRI scan of the brain performed at the request of the family on10 July 2023 reconfirmed the severity of the profound neurological injury, with grossly abnormal appearances of the brain. Over the course of her stay she has been cared for by more than 10 different consultant intensivists and has been discussed at departmental complex case meetings, a professionals meeting and two best interest meetings. The combined opinion is that there is no role for readmission to intensive care for invasive organ support as the risks and burdens of instituting this outweigh the benefits. Treatments would be limited to those that can be delivered at ward level, e.g. nutrition, hydration, antibiotics when necessary and access to occupational therapy and physiotherapy where indicated.”
“17. The treating team has wrestled with fine balance between the respective best interests associated with either of the available options for a long time. Our ability to reach a firm conclusion was frustrated by the lack of engagement from VA’s family in the best interests decision-making process until9 May 2023 . Notwithstanding this engagement being then supplemented by the meeting on3 July 2023 , the Trust now understands that the input provided during those meetings as to VA’s wishes, feelings and best interests must now be considered in line with the broader opinions of VA’s family who have previously chosen not to engage. 18. The treating team would still be prepared to insert a tracheostomy but the Trust’s position as to this being in VA’s best interests was shaped by an analysis factoring in a holistic view based on what it previously considered to be an indication as to VA‘s wishes and feelings provided by certain family members on3 July 2023 . However, subsequent to this, another family member (AA) approached the bedside team on30 July 2023 suggesting that some members of the family may not wish to proceed with tracheostomy. 19. In light of the way this case has proceeded the Trust has reflected as to the input of the various members of VA’s family and feel that the evidence as to VA’s wishes has become confused and consequently unreliable. It now seems unclear as to what VA’s wishes would be and consequently the Trust can now only revert to its initial position as to best interests shaped entirely on a clinical appraisal, favouring extubation. 20. Whilst the placement of the tracheostomy and gastrostomy is likely to extend the length of VA’s life, it is felt that the quality of her life would be so extremely poor with no cognitive awareness of surroundings, in a persistent vegetative state, dependent on all care and no realistic prospect of neurological recovery beyond this. It is therefore the view of the team that the burdens of this option outweigh the potential benefits. Accordingly, given the inability to reliably ascertain what VA’s interests would be, due to the conflicting communication from immediate family members, we consider that, entirely on clinical appraisal, it is in VA’s best interests to be removed from the endotracheal tube and placed on the palliative care pathway.”
“I have not found the logic which underpinned the basis for those apparently equal alternatives, easy to identify in either the written or oral evidence. The change in the Trust’s position has, unfortunately, reinforced the family’s general resistance to the hospital.”
“The family’s role, as they have come to understand in this hearing, is to help the Court understand, to the extent that it is possible, what Mrs VA would want in her present circumstances. This can now only be understood by endeavouring to understand Mrs VA’s character and personality, what she may have said, if anything, in contemplation of her current situation. The code by which she has lived her life.”
“21. …. Dr C clarified that Mrs VA’s brain is in a process of atrophy. She is generally weaker and her muscle tone and function [are] also deteriorating. She does not require mechanical ventilation or treatment in ICU. She is receiving room level oxygen and can breathe independently. Her challenge is that she has a weak cough which could be managed effectively with deep suctioning via tracheostomy on the ward. Self-evidently, that is an intrusive procedure. Dr C, in common with all the other doctors, is clear, for reasons to which I have already alluded, that treatment of any kind is, and has been for some time, futile. It is also burdensome. 22. Extubation involves a risk that Mrs VA’s cough might not be strong enough, effectively to regulate her own airways. The first 24 hours would be key. If Mrs VA managed, this would permit of the potential for her to be moved to a room, off the ward, for further care. If it were not successful, she would need medication to limit her secretions, less intrusive suctioning and this might not be successful. To confront the reality, it might lead to her death. As the doctors have made perfectly clear, Mrs VA is dying. Her children struggle to accept this and hope for reversal of their mother’s medical fortunes. 23. As everybody in this case is aware, ICU is an incredibly busy and extremely noisy environment. This is unavoidable, it is providing intensive care. It affords little privacy and no peace. The purpose of ventilatory support is, as Dr C put it “to support the patient whilst you identify and treat any reversible condition”
“This sense of responsibility and deep-seated belief in their duty to their mother has, in my judgement, paradoxically, diverted their focus onto what they think might be the right thing to do and not, as it should be, what is in their mother’s best interests.”
“43. Because each of the children had different relationships with their mother, they have struggled to engage with the challenge of wondering what she would have wanted in her present parlous position. Some families never have the discussion about what they would want if they were to be in Mrs VA’s circumstances. It could happen to anybody and the experience of this Court is that many do have such conversations. Increasingly, people make Advance Decisions setting out what their wishes would be. This family did not have these kind of discussions. MA said that it was not in their cultural tradition to do so. In any event, I am satisfied that Mrs VA never approached the subject. 44. VA complied with some of her medication and not with others. I am told that she rather disliked hospitals and had an anxiety about professional negligence. Though I guard against the family’s understandable strain to filter evidence into their own concluded view, I think this is most likely correct. It fits with the wider evidence of VA’s intellectual independence. 45. None of this provides secure ground to establish what Mrs VA would have wanted. That said, I am clear that privacy and independence were both important to this courageous woman.”
“The process of extubation as described in court on24 August 2023 does not align with the dignified, peaceful passing our Mother would wish for. Our Mother has a weak cough and heavy secretions. Extubation will not allow the deep suctioning our Mother requires. The removal of the endotracheal tube will result in a complete loss of airway support and the heavy secretions will block her airways. The suggestion by the medical team was medication to reduce secretions and if unsuccessful, attempts could be made to suction by placing a tube into the mouth and down the throat. This method sounds painful and invasive. It is possible our Mother could suffer for an unspecified amount of time struggling for oxygen. Our Mother will not be able to communicate her pain levels and whether or not comfort medications are providing sufficient relief. She could also suffer the indignity of repeated, invasive attempts to push instruments down her throat to remove secretions. It is respectfully argued that the order for extubation in our mother’s case, with her specific condition and challenges has placed too much emphasis on expediting death (due to the perceived poor quality of life) and not enough focus on the actual mode by which death may occur. It is unlikely that the process of extubation will allow the dignified, peaceful passing our Mother would wish for.”
“The court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid. If the court decides to make an order about costs – (a) the general rule is that an unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order. The general rule does not apply to the following proceedings – (a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings. In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including – (a) the conduct of all the parties; (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and (c) any admissible offer to settle made by a party …. The conduct of the parties includes (a) conduct before, as well as during, the proceedings …. (b) whether it was reasonable for a party to raise, pursue, or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (d) whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.”
“Nor in my view is it a good reason to depart from the general principle that this was an appeal rather than a first instance trial. Once again, the fact that it is an appeal rather than a trial may be relevant to whether or not a party has behaved reasonably in relation to the litigation. As Wall LJ pointed out in EM v SW, In re M (A Child)[2009] EWCA Civ 311 , there are differences between trials and appeals. At first instance, ‘nobody knows what the judge is going to find’ (paragraph 23), whereas on appeal the factual findings are known. Not only that, the judge’s reasons are known. Both parties have an opportunity to ‘take stock’ and consider whether they should proceed to advance or resist an appeal and to negotiate on the basis of what they now know. So it may well be that conduct which was reasonable at first instance is no longer reasonable on appeal. But in my view that does not alter the principles to be applied: it merely alters the application of those principles to the circumstances of the case.”