B NHS Trust v J [2006] EWHC 1318 (Fam)

This was an application to the court by B NHS Trust for declarations in relation to a female patient in a persistent vegetative state (PVS). The patient, J, had suffered a subarachnoid and interventricular brain haemorrhage and never recovered consciousness.  The Trust asked the court to make declarations that:

(a) J lacked the capacity to make decisions as to future medical treatment.
(b) It was not in J’s best interests for continued artificial nutrition and hydration to be provided.
(c) The Trust and its medical staff may lawfully discontinue and withhold all life-sustaining treatment and medical support, including nutrition and hydration by artificial means designed to keep J alive, and may lawfully provide treatment to ensure that J suffers the least distress and retains dignity until such time as her life comes to an end.

J was 54 years old, married and had 2 daughters. When she was discharged to a long-term care home she was wholly dependent on staff for her care needs 24 hours a day and continued to be fed through gastronomy PEG feeding tube.  J was not aware of her surroundings, could not communicate and was completely immobile.  Her eyes were open but not reactive and she was unable to interact with staff or family members in any way.  J’s family were supportive of the Trust’s decision to issue proceedings for the declarations sought.  Their view was that J would not have wished to for her life to be prolonged in this way and that she would have wished artificial hydration and nutrition to be withdrawn.  Neither would she have wanted her family to suffer the distress of seeing her subjected to further life-prolonging treatment.  The Trust relied on the independent expert opinion of a consultant physician (A) specialising in disability medicine and chronic care for the disabled.  His opinion was that if recovery was to occur in J’s case, it would have occurred within the first 3 months following her brain damage.  He also commented that the anoxia in her case had produced permanent profound and irreversible brain damage.  He could find no clinical reason why life sustaining treatment should not be discontinued.

However, the Official Solicitor (OS), representing the interests of J, expressed concerns and opposed the immediate grant of the declarations.  He quoted a research article which recommended the administering of Zolpidem, a sleeping medication, to stimulate brain activity in patients with PVS.  A was invited to comment on the research and he spoke to the author of the article. He concluded that although the evidence of the benefit of Zolpidem was “debatable”, there was no reason why J should not be given a trial of treatment with the drug.  The effect of the drug could be expected within 3 days if there was going to be a response.  J’s family opposed to this proposed course of treatment and that she might awake temporarily and realise that condition she was in.  This might cause her sadness and pain.  Even if Zolpidem did have an effect they thought it unlikely that J would have any quality of life, which is not something that she would have wanted, given the view she had previously expressed to her family.  The OS sought an adjournment of the final hearing until J had undergone a short 3-day trial of Zolpidem.  If there was no response within a 3-day period it could be assumed that there was not going to be a response at all.

A explained to the court that there were 3 matters which effected the chance of a  person emerging from a persistent vegetative state;  the patient’s age, the type of damage and the question of how quickly the patient opened his or her eyes after the initial event.  Although there was only a slim chance that the treatment would be successful in J’s case, he felt it was important that any patient should be given the chance to recover however remote it might be.

The court acceded to the request from the OS that a short 3-day trial take place.  A did not regard the fears of the family that J might suffer as a response to the treatment, as being well-founded, and in any event the treatment could be discontinued if it became apparent that J was in distress.  It was declared lawful as being in J’s best interests for her to undergo a course of Zolpidem over a period of 3 days.

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