By Celia Kitzinger and Amber Dar, 24th January 2022
These proceedings, heard before Mr Justice Hayden on 12th January 2022 (COP 13872811) concern a man in his late 60s (AB) who has been diagnosed with COVID-19 pneumonitis.
At the time of the hearing, AB was being mechanically ventilated, under deep sedation, on an Intensive Care Unit. He also now has sepsis, although this appears to be responding to antibiotics. We heard that he has “a fifty-fifty” chance of survival if the current treatment regime were to be continued (later described by the treating doctor as “a generous estimate – just there to communicate the gravity of his predicament”). He is unconscious and unable to make any decisions for himself.
The applicant NHS Trust (represented by Eloise Power) believes it is in AB’s best interests to continue to receive treatment for COVID-19 pneumonitis in accordance with Guidelines produced from the National Institute for Health and Care Excellence (NICE: NG191). If he should have a cardiac arrest, this would be evidence that treatment had failed and they would not attempt cardio pulmonary resuscitation, which doctors described as “futile”.
This treatment plan is disputed by the patient’s brother (a Litigant in Person). He proposes an alternative treatment plan which includes administration of hydroxychloroquine, ivermectin, azithromycin (or alternatively doxycycline), plus zinc, and vitamins C and D. He also wishes resuscitation to be attempted if his brother suffers a cardiac arrest.
Mr Justice Hayden – who appeared on video with an uncharacteristically domestic backdrop (a cluttered bookshelf, photos, soft furnishings) – helpfully filled in some of the details at the outset of the hearing.
The patient, he said, had been “hitherto fit and healthy”:
“He was a tennis player with no obvious co-morbidities – a bit of high blood pressure, nothing particularly unusual for his age[i], and a bit of osteoarthritis, but nothing preventing him from playing tennis and coaching tennis. For reasons impossible to tell on the basis of the papers, he decided not to have the COVID-19 vaccinations, and some would say he has paid rather a heavy price for that decision.”
There were difficulties for both of us in gaining access to this hearing: although Celia was able to observe the whole hearing, Amber was not admitted until after the oral evidence from the treating clinician (following Celia’s email direct to the Video Hearings Administrator instead of the RCJ email address we are supposed to use, but from which we sometimes receive no response). We have divided this report between us accordingly. All quotations are as accurate as we could make them, but we are not permitted to audio-record hearings, so they are unlikely to be word-perfect.
Evidence from the treating clinician, by Celia Kitzinger
An intensive care consultant (Dr G) described how AB developed symptoms of COVID infection in early December 2021 but didn’t attend hospital until more than two weeks later, when he was suffering from increasing breathlessness.
He was originally treated with Continuous Positive Airway Pressure (CPAP), which blows air through a mask into the lungs, but he was not “amenable to persisting” with it. According to the Official Solicitor, AB “declined to follow (robust) medical advice to keep his CPAP mask on” and “on at least one occasion he removed it to go to the toilet, leading to some worsening of his condition”. He also declined to lie prone (flat with his face down) because it was uncomfortable and also declined intubation, but by this time was assessed as lacking capacity to make that decision. Two days after admission, he was admitted to the intensive care unit.
Counsel for the Trust, Eloise Power, conducting examination in chief, asked, “Before he lost consciousness, what if anything were staff able to elicit about his feelings about treatment?”.
“Not very much”, said Dr G. “He was quite confused due to low levels of oxygen in his blood. He expressed the view that he didn’t want to go to ICU, but he did want to remain alive. There was a tentative discussion with the ICU doctor later. He does not believe he is in ICU, which gives an indication of the general level of confusion”.
At this point Mr Justice Hayden intervened to ask about “the structure of the family here: does AB have a wife? What do we know about the family?”. It appeared that AB was divorced and living alone, and – in addition to the brother who was in court – he has three sons, none of whom was present at the beginning of the hearing, although one of them (BB) has been the primary point of contact between the hospital and the family and was in fact named as second respondent on the court documents. There had been “many attempts” to contact him for today’s hearing but he was “sadly” not present.
Counsel for the Trust asked whether hydroxychloroquine has a place in the treatment of COVID-19. Dr G reported that this drug is widely used for malaria and for the treatment of rheumatoid arthritis. Neither the National Institute for Health and Care Excellence (NICE), nor the National Institutes of Health (NIH) in the United States, nor the World Health Organisation (WHO) recommend its use for COVID-19. (In fact, the World Health Organisation makes a “strong recommendation” against using hydroxychloroquine or chloroquine for COVID-19.)
It was mentioned that AB’s brother had provided a 2005 paper by way of evidence to the court to support a claim of hydroxychloroquine’s effectiveness against COVID-19 (based on its claimed effectiveness in relation to SARS): I haven’t seen the publication he provided, so don’t know for sure, but I suspect – because of its prevalence on social media – that it’s this one, subject to a Fact Check (and found not to support hydroxychloroquine in this context).
Counsel for the Trust then asked whether Ivermectin has a place in the treatment of COVID-19. Dr G explained that Ivermectin is used for parasitic infections (COVID is not a parasitic infection) and is not recommended by NICE, the NIH or WHO as a standard treatment for COVID-19. Dr G said that in vitrostudies (i.e. in the lab, not on humans) had indicated that it might have effects on coronavirus but that the dose that would need to be given to a living patient would be so high as to be toxic.
Azithromycin and doxycycline
Dr G simply reported that NICE Guidance says “Do not use azithromycin to treat COVID-19” and doxycycline is “not recommended”.
Zinc, Vitamins C and D
Dr G reported that zinc and Vitamins C and D were already being administered via AB’s clinically assisted nutrition and hydration “as part of our standard protocol, because the majority of ICU patients have nutritional deficits”. Additionally, he pointed out that Vitamin D is recommended by NICE for “people with dark skin”.
DNACPR (Do Not Attempt Cardiopulmonary Resuscitation)
Counsel for the Trust asked Dr G to explain the rationale for the view that cardiopulmonary resuscitation is not in AB’s best interests.
“He’s really at the limit of the amount of organ support we can give him. He’s fully ventilated, with sedation and muscle paralysis. He’s in renal failure and on drugs to support blood pressure and broad-spectrum antibiotics. He’s receiving pulmonary embolism treatment and artificial nutrition and hydration and other treatments – all with the intention of cure. So were he to deteriorate to the point at which he suffered a cardiac arrest, there would be no way back from that. It would represent treatment failure. It would either be unsuccessful, or it would extend his life by a few minutes. All the treating clinicians are of the view that it is futile and not in his best interests.”
Counsel asked whether, if the court were of the view that CPR was in AB’s best interests, the treating team would then be willing to administer CPR. This question was presumably designed to address a lack of clarity (quite common, in my experience, in Court of Protection cases) as to whether a proposed treatment is actually an available option for the court to consider. The court cannot order doctors to give futile treatments – and CPR had been so described by Dr G.
Mr Justice Hayden intervened before Dr G could answer the question, saying “this is not the point at which to ask that question”. He posed his own question to Dr G instead: “If CPR were attempted and succeeded to some extent, would it further reduce his quality of life?”. Dr G confirmed that it would – because AB’s brain would be deprived of oxygen for a period: “the potential for brain damage is one of the most serious consequences of CPR. Many patients who suffer CPR are left with brain damage and therefore a reduced quality of life”. Dr G went on to suggest that – unlike AB’s brother – AB’s son (not present in court) had accepted the rationale for the Do Not Attempt Cardiopulmonary Resuscitation notice.
Mention of AB’s son alerted the judge (again) to the fact that important family members were absent from the courtroom. He asked why the son was not present and was told that he had not responded to voice messages or emails. Addressing counsel for the Trust, he said: “Send an email now, and a voice mail, saying the judge wants him to attend”. Eloise Power started to respond: “I have no optimism that will bear fruit as I myself-“ but was cut off by the judge: “Explicitly say the judge requires him to attend”. “Requires?” she asked (I don’t know if her eyebrows actually went up, but that was the tone of voice in which she repeated the word “requires”). “Yes”, confirmed Mr Justice Hayden.
Cross-examination by AB’s brother
AB’s brother – attending the hearing only via phone and not on the video-link – asked a wide range of questions of Dr G, the scope of which went way beyond treatment of his brother. They included:
- Can you explain the policy of the NHS telling people with COVID to isolate for 10 days?
- Why do no COVID patients receive treatment before attending hospital?
- The proposition was that if you had the vaccination, you wouldn’t be infected and that’s not the case – so what’s the difference between the vaccinated and the unvaccinated, if the vaccinated are still catching it?
- What is the success rate of treating COVID in your hospital?
- Do you know what was given to the Prime Minister to get him out of hospital when he had COVID?
- Why are you saying to the court that Ivermectin and hydroxychloroquine are not curative when there is evidence that they work and hydroxychloroquine has an unparalleled safety profile, and has been given to pregnant women and millions of people in malarial countries?
- You maintain that Ivermectin does not cure bacterial infections. That’s your position today, under oath?
- You are giving my brother 70 different medications. I’m putting it to you that 70 different medications indicate to me that you don’t really know what you are doing.
Much of what Dr G said in response to this barrage of questions simply restated NICE guidance and government policy, and covered some of the side effects of these non-mainstream medications (e.g. for ivermectin, neurological damage, seizures, coma, liver failure). In addition, we learnt that every single COVID patient currently in the ICU at that particular hospital was unvaccinated.
Cross-examination by counsel for AB (via the Official Solicitor)
Questions from Sophia Roper (SR) for AB via the Official Solicitor attempted to get to the bottom of the question of whether any of the treatments AB’s brother wanted the patient to have was actually on offer – given, of course, that the court cannot order doctors to give treatments contrary to their clinical judgment.
SR: Neither you nor your colleagues would be willing to give Ivermectin?
SR: Neither you nor your colleagues would be willing to give hydroxychloroquine?
SR: The other medications – he is already receiving zinc and vitamins C and D, but not azithromycin or doxycycline?
Dr: They are not clinically indicated for his condition.
SR: So you are not willing to give them.
Dr: We would not give those treatments, no.
SR: On CPR, are you saying you would be willing to give CPR if the court orders it, but your position is that it’s futile?
Dr: If we were asked to perform CPR, the entire clinical team would be very uncomfortable with this, and it would cause a lot of distress to the staff.
SR: Can you explain what CPR involves.
Dr: It involves vigorous chest compressions while we try to find a reversible cause. In this case we can’t find a reversible cause. It will lead to broken ribs and an undignified death.
Brother: There is no objective way you can say whether a death is “dignified” or not.
Judge: I have to tell you that I have strong views about dignity at the end of life.
The judge then asked whether contact had been made with the son. He also asked whether attempts could be made to link AB’s brother into the hearing via video, so that he could be seen as well as heard. “I’m being asked to make the most important decision in AB’s life,” he said, “and I want the best possible evidence”.
There was then a 30-minute break during which Amber was able to join the hearing – which then resumed with evidence from each of AB’s three sons in turn, followed by evidence from AB’s brother
Evidence from the family, by Amber Dar
This is the first Court of Protection hearing I have observed, and it was a privilege to listen to each family member giving evidence in this case.
During what must be a very difficult period, and attending the hearing at such short notice, it was clear that each family member wanted to answer the questions posed to them in as much detail as they could, to assist the court in finding out more about AB and his wishes. The range of information provided by AB’s sons and brother reflected how close each family member was to him. Each person was doing their best to ensure that AB was receiving the right care and treatment in hospital at this critical time.
Evidence from the first son (CB)
This son had not expected to be in court and joined at short notice via telephone.
Sophia Roper (Counsel for AB via the Official Solicitor) began questioning CB, asking him how many times he’d visited CB in hospital. But the judge intervened: “Do you mind if I ask questions myself. I need to direct them to what I need to know”. He then took over the evidence in chief, though both counsel asked questions of CB subsequently.
Hayden J asked CB about his vaccination status, advising that CB did not have to answer this personal question. CB confirmed that he had not been vaccinated against COVID. CB also confirmed that he knew AB was not vaccinated. When asked if CB had discussed vaccination with his father, CB shared that he tried to talk to AB but AB did not want to talk about this. When asked if CB wanted AB to take the vaccination, CB said it was AB’s decision and that he “wasn’t too bothered” and would “support his decision either way”. CB also shared that AB did not actually say he was not going to get vaccinated, “he just didn’t do it”. When asked if he was worried about AB when the new variant Omicron came around, CB said: “Not really. He was a really healthy person and it wasn’t at the forefront of my mind, thinking it was a possibility of him contracting it. He had a healthy diet, he was playing tennis, and going for walks as well”.
When asked if he understood AB’s situation now, CB referred to the sepsis infection, saying that he hoped antibiotics will improve the situation, and that he understood doctors were trying wean his father off the ventilator but that his lungs were damaged.
Hayden J asked CB about his views on the research his uncle (AB’s brother) had done on alternative drugs for AB, all of which had been put to the doctor and “ in every single case it seems likely the alternative drugs would do harm rather than good in your Dad’s case, following guidelines in the UK, the USA and from the World Health Organisation. The Official Solicitor wants to follow the orthodox treatment but [your uncle] is desperate to try anything. What’s your view?”
CB said: “ Ivermectin is the only one we’ve discussed, and I wouldn’t mind trying that one”.
Hayden J did not comment on CB’s reply. Instead, he moved on to what he characterised as “the big question” – CPR:
Judge: “I’m going to try to summarise the evidence very bluntly. If CPR were necessary for your dad, it would mean that everything else had failed. It is futile in the sense it would perhaps get him to breathe for a short time but not very long. There is a strong possibility of deprivation of oxygen and brain damage. All treating doctors say that would be corrosive of his dignity, and would reduce further the quality of life he has. [Your uncle] doesn’t agree with this. Do you have a view on it?”
CB: Yes. I’ve spoken to the nurses. My brother has just had a newborn. My father would be happy to sacrifice a bit of quality of life to see his new grandchild. I understand the doctor’s view but I would still want them to try.
Asked if there was anything else CB could tell the court, CB emphasised that AB was a man who was very active in the community, and was always there for family, friends and neighbours. CB described his father as a very self-less person, who also had family in Africa, and would send clothes and toys to children in Africa, and contribute to charities, playing a large part in the community and giving back.
Hayden J states that he always likes to ask two questions:
- Did AB have a favourite meal?
CB explained that his father focussed on food as practical nourishment. He would say that ‘you eat to sustain yourself, it’s not important” – but he did love crab and black bean sauce!
2. Does AB support a particular football team?
He supported Arsenal in the past, but he’s a sportsman who watches all sports and enjoys a good game, without really supporting a team.
Eloise Power then questioned CB on behalf of the Trust.
EP: Thank you for telling us a bit about your dad. I have a question about CPR. His Lordship asked what you thought your dad would want, and you said your younger brother had a newborn. But if your dad were in the tragic situation of there being no real prospect of seeing the newborn, would he still want CPR with all the consequences – even if there was no prospect of seeing the baby?
CB: When he’s been ill in the past, even if hope is slim, he’d weather through it and try to make the best out of the situation.
EP: On one page of the medical records, it says he wouldn’t have wanted to be physically impaired – that he valued his sport and did not believe in life at all costs and would not want to cling on if his body was very damaged.
CB: His sister was in a similar situation 2 years ago. She was a vegetable after surgery. I saw how he dealt with her situation – when she couldn’t do anything, but she was still alive. I know he would take solace from having family around to support him, even in dire times.
Sophia Roper (on behalf of AB via the Official Solicitor) then questioned CB. She referred to AB’s past injuries, “mostly through sport – knee and shoulder, and treatment for those”. Her impression, she said, was that he’d “essentially taken medical advice and was keen to receive what treatment is offered”. She asked whether AB was open to alternative therapies/medicines. CB shared that “Dad was private on his views – he’d read up and research it but he wouldn’t necessarily discuss it with me”. The Official Solicitor then proceeded to ask, “like the Covid-19 vaccine, you know his position but he wouldn’t discuss it?” CB answered, “yes, on certain subjects he’d delay the conversation, push it off to another time, and that was his way of not having the conversation.” He said that AB may have spoken to their uncle about this more.
Hayden J intervened to ask whether the uncle (AB’s brother) was now connected to the platform and was told that although he was connected, there was no video connection, only audio. “I would like to see some family member face to face. I’ve never made a decision of this nature without seeing family face to face and I’m instinctively concerned about that.” He hoped something could be done about this over lunch – and there was then a 50-minute lunch break
Evidence from the second son (DB)
This son appeared on the video platform – the first member of the family to do so.
Sophia Roper (on behalf of AB via the Official Solicitor) took evidence in chief. She asked DB if he understood AB’s condition and if he had seen AB in hospital. DB said he’d seen his father once, after he’d been moved into ICU.
SR: Have you had any discussions with doctors about the treatments he’s been given?
DB: We’ve asked questions about what he’s been getting.
SR: Are you satisfied with the answers given?
DB: It’s difficult because he’s been getting worse, and obviously that’s not down to the doctors or the medication he’s been given, so that makes me think- well that’s just very difficult.
SR: Could you finish that sentence that began “that makes me think…”. What does it make you think?
DB: Whether there are other medications that would help. I want my dad to get better.
SR: Is it fair to say you’d be willing to try almost anything to help him get better?
Counsel then asked DB to tell the court about his father, and the sort of man he was – in addition to what we know about AB being “a keen sportsman, a keen tennis player”. Like his brother CB, DB portrayed their father as “very family orientated”, that he would give advice, help people, “builds very strong relationships with people”, and likes to help the community, friends, and neighbours. He also told the court that, when he was in Primary School, his father used to take him to play tennis and that he’d advocated for him to be healthy, to do the right exercise, and promote his general well-being. He described his father as a logical person, a practical man, who would do his own research, giving an example that a doctor was surprised at how much AB knew about medical matters.
The Official Solicitor asked whether their father did his own research “for information” or “because he was a ‘natural sceptic’”. DB explained that his father was a teacher, and that he liked to be educated on topics. He was “big on supplements” to help his immune system. Was he “open to non-standard treatments” and “open to alternative therapies” counsel asked. “I would say yes”, replied DB: he “would look it up to find his own conclusion, do further investigation”. It emerged that AB was an IT lecturer before he retired.
DB was also asked if he knew why his father decided not to have the vaccine. Like his brother CB, he explained that his father would say “it’s not a conversation for now”, and he was not sure why. When asked if his father wanted to keep parts of his health private, he repeated that he’d often say it was a “conversation for another time”.
Hayden J asked DB if the two brothers (AB and DB’s uncle) were similar or different. DB said they were “similar in some respects. They both like information. They didn’t agree about some things but they did agree about other things”. He said they discussed a lot of issues regarding DB’s aunt (their sister) e.g., “what would help her come out of her situation, what would give her the best care”.
Hayden J asked if DB had been following the Novak Djokovic case in Australia, and if his father would have agreed with Novak Djokovic (i.e. that it was “up to him whether he has the vaccine or not”) or taken a different view. DB thought yes, that “Dad would take this view”. Hayden J noted “they’re both tennis players and they both like alternative remedies”.
DB described his father as being health motivated, taking vitamins and supplements. When asked about his high blood pressure, DB talked about how he was very fit for his age and was able to play a four-hour tennis match some weeks before going into hospital. DB confirmed that his father would know his daily blood pressure reading using a machine at home: “He likes to know. He could do the test himself so if he went to a doctor he could say, ‘On Monday it was X, on Tuesday it was Y and on Wednesday it was Z”. Hayden J asked if AB “wanted to take charge of his health himself”: DB replied “yes”.
Sophia Roper picked up the questioning again and asked DB if his father had contributed to medical decisions about AB’s sister in the past – she had been referred to in the medical records as having “severe and permanent neurological injury”. DB explained that there had been conversations about resuscitation and that his father wanted her to be resuscitated even if quality of life was a concern. “It would be better that she be here with us and be able to pull through whatever the situation might be.”
SR: Inevitably one would feel differently when making the decision about oneself. Do you think he’d want the same for himself?
DB: Yes, I would say for himself he, my dad, would want to be resuscitated. I have a newborn son he has not seen. He would definitely want to see him. However he were to come out of it, he would rather be here.
(At this point the third son, BB, tried to interject something, but was cut off by the judge who said, “We are not in a meeting – we are in a courtroom and you will be called to give evidence soon”.)
SR: Has he communicated this to you?
DB: No, but his views regarding my Aunty are telling.
SR: What’s that view based on? Importance of family? Life at all cost?
DB: I’m not sure regarding specific reasons, but he was going down to help my Aunty. He is so family orientated. If she was around that would be better than her not being there.
Hayden J intervened again to clarify that “we are not in that situation”. He explained that, if AB had a cardiac arrest, that would signal that all treatment had failed. CPR might result in a short prolongation of life, perhaps minutes of life, but deprivation of oxygen could mean brain damage so that AB “might be there physically but not in any way mentally”.
Nonetheless, said DB, “even regarding that, he’d still want to be resuscitated, even if just 5 minutes or 30 minutes or two days, he’d still be around for a little bit longer”.
Eloise Power (for the Trust) questioned DB about his father’s views on senior doctors and whether he would respect the advice of senior doctors: “Dad wouldn’t just accept what they said. He would still have input… He would listen, but he would still have his questions as well.”
“We don’t have to hypothesise,” said Hayden J. “There’s a slew of information about COVID-19 and he decided not to have the vaccine despite all the advice. It’s probably one of the worst decisions he’s ever made in his life, poor man. It tells me quite a lot about his independence of mind.”
Hayden J then rephrased the question posed by Eloise Power. The doctor giving evidence in court had been asked about each medication suggested by AB’s brother. “Most are not recommended by the WHO, some are potentially harmful, some are for other infections and are of no use to him. What Ms Power is asking is, if your dad heard these explanations about the unsuitability of the medicines being offered, would he be likely to push ahead anyway or listen?”
DB: It’s quite difficult. He would have looked into it for himself.
Judge: So, we simply don’t know what he would have done. Evidence that something is not only not a benefit but might be positively harmful, doesn’t mean he wouldn’t have taken a different view.
EP: The medical record says that your brother BB felt AB would not have wanted CPR if it meant suffering and a reduction in his quality of life.
DB: Yes, I have a newborn son that he hasn’t had the chance to see. I know he really wanted to see his grandson. He may not be able to do the things he used to do but at least he’d be around in whatever capacity he could, just there for the family. And it’s a big family and there would be people who would want to take care of him.
EP: If we were in the tragic situation with no real prospect, would he still want to be resuscitated?
DB: Yes, just for the chance. I think he would be willing. He would want resuscitation.
Evidence from the third son (BB)
This is the son named as the second respondent on the court documents – the one who has been the primary point of contact between the hospital and the family.
It had been reported earlier in the hearing that BB knew about this application, but was in meetings all morning and “was annoyed that his availability was not ascertained”.
It had also been reported by the Trust that BB was “in agreement with the hospital’s proposals for treating his father” and had “agreed that [his] father should not be resuscitated in the event of a cardiac arrest”. He was recorded as having said that “he felt his Dad was a very active man and would not have wanted to live with a significantly decreased Quality of Life – stated he would not want his dad to suffer”.
As counsel for AB via the Official Solicitor started to try to take evidence, BB instead expressed his own concerns. “The litigator to the hospital used incorrect words” he said. “The litigator said I would say my father would not be happy with a reduced quality of life and that’s not right.” He felt his words had been used “out of context”. If his father has a cardiac arrest and there is a resuscitation attempt, then he understood there to be three possible outcomes: (1) AB would fully recover (2) AB would partially recover or (3) AB would not make it. BB said he would be happy with a partial recovery. He also said: “I am not in favour of drugs being used that would go against stated medical advice. This means potentially introducing drugs that will have adverse effects on my father’s health. I can’t get on board with that”.
“Ultimately for me as a son, the ideal situation is full recovery; the second best is a partial recovery. But I’m a pragmatist. If there is a cardiac arrest situation and CPR is not going to make any significant improvement in terms of enabling him to recover, then I don’t see the point. I want to make clear I’m a bit upset at how my words have been used”.
Hayden J said he was “quite sure” that , “Miss Power did not mean to be discourteous to you or misrepresent your feelings. Anger is a natural part of grief. Part of the grieving process starts when someone is alive and Miss Power doesn’t deserve your anger”.
BB shared his concerns about how this inaccurate account of what he said (as indicating that there’s “no point” to a partial recovery – “I don’t think that!”) will be “divisive in the family”.
Hayden J asked whether the word BB might have been looking for earlier in talking about CPR that wouldn’t keep his father alive, was “futile”. “Yes, exactly”, said BB, “If it’s going to be futile I would not be in favour”.
Hayden J then asked, “which of you brothers is most like your father?” BB replies, “I’d say me”, adding “my father can be quite cantankerous’. He described how, when his father had been admitted to the CPAC unit, with concerns about his heart rate being regulated, he was saying “I just played a 4-hour tennis match three weeks ago and I can manage it”. He described his father as “a teacher, an intelligent man, and a free thinker. His retort was ‘I can regulate my own breathing’”. Hayden J acknowledged this and said that there can be a “difference between the reality of someone’s condition and their perception of it”.
Hayden J then asked more questions about the family circumstances, and specifically, who arranged for the ambulance for AB. BB explained that it was he who asked his mother to call the ambulance, after speaking to his father during an overseas phone call (“Dad didn’t sound too good”) and then failing to reach him by phone the following morning. When BB called his father back to inform him that an ambulance was on its way AB simply said that he would get ready – “an indication to me,” (said BB) “that he thought he was quite unwell, because he didn’t make a fuss”.
BB: “I have always been concerned about my father’s well-being. I understand it’s a difficult balance. My brothers and uncle have their own views about it. We are all in agreement that we want my father to make a full recovery, and outside that is where the disagreement comes about what’s best.”
BB talked about how there was sometimes a lack of clarity about information from the hospital, specifically in relation to CPR. He said there was “a form my father could have filled out when he was compos mentis, when patients can sign a form to say they want to be resuscitated. I had assurances from some doctors I spoke to about this. I asked would they attempt CPR and they said yes, with the first cardiac arrest they would do so. Then they changed their minds and said, ‘we would take a collaborative view and work with the family etcetera’. I said, ‘let’s cut to the chase – what’s the legal position […] and they said it’s a collaborative decision but ultimately the decision lies with the medical team.” His view was that doctors had been “a bit disingenuous”.
BB agreed with Hayden J’s comment that “the situation evolves” and “all those doctors want the best for your dad”, but was concerned about the manner in which the family had been informed about AB’s critical condition two weeks earlier. He said that a junior doctor called the family on a Saturday night at 10.30pm and said that AB was in a critical condition and might not make it through the night. He felt this was “not satisfactory” and asked “why had no-one called earlier? Why was it not suggested that we cannot as a family come and pay our last respects?” The doctor did not say that family could come – but they went anyway and raised the question of resuscitation again. BB expressed concern that, “If I hadn’t taken the initiative to go down to the hospital, what would have happened?”, stating “that was the turning point for me”. His summary of the conversations with the medical team went like this:
BB: If as a family we wanted our father to be resuscitated what would happen?
Medical team: As a medical team, we would make that decision
Hayden J stated that BB had given him a real insight in to his father and the code by which he lived his life, his character and his intellect. ‘You said you were most like your father and he is a pragmatist, and you described yourself as a pragmatist and that’s what led me to make that link”. He added that his father would be very proud of the way in which the evidence from BB and his brothers had brought him into this court room.
Evidence from AB’s brother
The first question put to AB’s brother was: “Did he discuss reasons why he wasn’t having the vaccines with you?”.
This led to an unexpected answer.
“Well, that’s the point. I spoke to him 2 months before and he told me he had been vaccinated, double-jabbed, and I was surprised at that statement.”
The brother explained he thought the severity of AB’s current illness was because his “immune system had been compromised” by the vaccine.
“Wait!”, said the judge. “I don’t want to get lost here. If he had been vaccinated it would show up on his medical records amazingly quickly. And it isn’t there.”
“Well, he told me he was vaccinated”, said the brother. “I don’t know why he would tell me one thing and his sons another”.
“I don’t know either”, said the judge. “But he wasn’t vaccinated”.
The brother expressed concerns about the COVID-19 vaccination. He compared the timeframe of the COVID vaccine with other vaccines: “This vaccination was developed and farmed out within 11 months. They haven’t got a vaccine for the common cold – then they roll this out.” He said other vaccines have taken up to 9 years to develop. He argued that “all vaccines don’t work, what’s the point of them”, and that we “can’t possibly know what the effects are going to be”.
Hayden J wanted to focus on “your brother’s views rather than your own”.
When asked by Sophia Roper if AB had discussed treatments, he described what happened in relation to their sister.
“My sister had a brain tumour and there was a 14-hour operation. We had Lasting Power of Attorney. All the clinicians could talk about was ‘do you want her resuscitated?’. All they could talk about was no CPR, and about the pain and suffering. But the position of 90% of my family is resuscitation. I have spoken to all the family and all said they want CPR. When you use terms like ‘futile’ it’s ridiculous. People have been in comas for ten years and made full recoveries.[ii]”
AB’s brother continued to raise questions about mainstream scientific work on COVID, asking “why can’t this be bacterial or parasitical? Could the name ‘corona virus’ be misnamed because they are working on the wrong premise?”
“I don’t want to argue the politics of the pandemic,” said the judge.
The brother then talked about a Power of Attorney form, apparently signed in December 2021, which was not considered valid as “it hadn’t been registered or signed by a solicitor. I said it would be a common law power of attorney. You can have a registered marriage and you can have a common law marriage and in the same way you can have a common law power of attorney”, he claimed.
“With due humility, you are talking to a High Court judge and I think you can assume I know the law in that area”, said Mr Justice Hayden.
After a short break, the court reconvened for closing submissions and the judgment.
Closing Submissions, by Celia Kitzinger
Eloise Power for the applicant Trust made the first closing submission. She thanked the relatives for “a human and full picture” of AB and said she wanted to make 4 points, “none of which are intended for foment any division”.
Her four points were:
- It is in AB’s best interests to receive the very highest quality evidence-based treatment – and that’s the treatment he’s currently receiving.
- The question of ivermectin and hydroxychloroquine is academic since doctors are unwilling and not in a position to provide these medicines, which are not licensed for use in the UK for COVID-19 patients, and may cause harm. She expressed the view that it is “very sad that so much misinformation is promulgated online so that families facing such agony are exposed to misinformation at a very difficult time in their lives”
- Family positions on what AB’s wishes would have been are similar, but there seems at the very least to have been a misunderstanding about whether AB had received vaccination. His records demonstrate that he was sadly unvaccinated, and this should be taken into account in evaluating the evidence from his brother. His son, BB, explained that if CPR were futile, AB would not want to be given it – and weight should be given to that.
- On DNACPR, Eloise Power said she’d talked to the doctor during the break and he’d reminded her that the decision not to carry out cardio-pulmonary resuscitation in the event of a cardiac arrest was based on the current situation, in which it would be futile. If there were to be a significant improvement in AB’s condition, that would be revisited.
For AB via the Official Solicitor
Sophia Roper said that the question of what medication and treatments AB should receive falls away because the treating team has made it clear that they’re not prepared to provide the ‘alternative’ treatments requested by AB’s brother. She added, “for the avoidance of doubt” that it is not in AB’s best interests to receive those medications, since they are not indicated for the treatment of COVID, or recommended by NICE, NIH, or WHO, and “in AB’s particular precarious position could be actively harmful”. Her view was that AB was a “very independent thinker, someone who did not take medical advice meekly, went off and did his own research and decided whether or not to take medical advice”, but it was not clear what he would have decided in this case. He had not communicated his views about COVID to his family – and had been “enigmatic”.
Judge: And… ‘awkward’, that’s not the word.
SR: ‘Cantankerous’, yes.
Judge: As a pragmatist, he would not have wanted to receive CPR if it was futile in terms
of restoring him to some kind of life outside the ICU.
SR: But the bar for him for CPR would probably be lower than it would be for many
people. That would need to be recognised by the clinicians when making what will
ultimately need to be a clinical decision. The Official Solicitor would support the
DNACPR notice as in AB’s best interests where clinicians consider it futile to
provide it. But limited to that.
Having received closing submissions from these two parties, the judge announced: “I’ve got all the family points, and I’ve heard extensively from [AB’s brother] so I don’t need to ask him to repeat himself again.” (So, no closing submissions from the Litigants in Person, i.e. the brother and one of the sons!)
Judgment, by Celia Kitzinger
In an ex tempore oral judgment, Mr Justice Hayden ruled that treatment should continue in accordance with NICE guidelines, and that the DNACPR notice should remain in place as long as the treating clinicians viewed CPR as futile.
We think the judgement will be published on BAIILI and will be publicly available – in which case we’ll link to it from this blog post – so we provide only a summary here.
The judge began by summarising what he’d been told about AB, as a family man and as a sportsman. He reported the fact that AB decided against COVID-19 vaccination and was unvaccinated: “objectively assessed, that must have been one of the worst decisions he has ever taken”. He ran through the details of AB’s hospital treatment, and his admission to ICU with severe respiratory failure and pulmonary emboli. He remains sedated, ventilatory dependent, requires renal replacement therapy and is fighting off sepsis. The treatment plan (he said) is predicated on a prospect that he may recover, but equally he may at any time succumb to his condition.
Hayden J then outlined some of the views about COVID expressed by AB’s brother which (he said) “are widely held on the internet and on social media” and the treatments (hydroxychloroquine, ivermectin, azithromycin) that he thinks would be of benefit to his brother. He pointed out that trials had shown they were “strongly contraindicated in treatment of COVID-19” and that consequently their usage was not approved by NICE (nor by NIH and the WHO).
“It follows, therefore, that [AB’s brother] is inviting this court to impose upon the treating clinicians a medical regime which is entirely rejected by the broadest possible clinical guidance. In short, I would be requiring them to act unethically, and in a way that was inconsistent with the available medical evidence. Of course, I am not prepared to do that.”
The judge then moved on to consider what he described as “perhaps the most controversial issue in this case … authorising that CPR should not be undertaken where it is assessed by the clinical team as futile”.
BB alone engaged fully and directly with this issue. The question is not ‘would AB strain every sinew of his once honed body to fight for every chance of life?’. I have no doubt at all that he would. But the question is ‘would he, when he realised that CPR was futile, have nonetheless subjected himself to it for no reason?’ I sense that AB, the pragmatist, would have known when the game was lost.
Dr G told me that were there to be a cardiac arrest at the moment, it would indicate only one thing – namely, that the treatment regimen that I’ve outlined had failed entirely. In those circumstances, to undertake CPR would, Dr G explained, be entirely futile. It would have no prospect of assisting in any curative way. It might enable AB to breathe for a very short period. It would probably, given his condition, result in some fracturing of his ribs. And there would be a real possibility of some deprivation of oxygen which would serve only to further worsen AB’s parlous situation. This, Dr G said, would be to compromise AB’s dignity as a human being. It would compromise the integrity of the doctors and staff were they asked to perform it. It would be inconsistent with good and sound clinical ethics.
[AB’s brother] suggested that human dignity was an entirely elusive and subjective concept that ought to play no part in the decision-making process here. He considered it to be too ephemeral as a concept. But human dignity finds expression in every major rights treaty of the last 70 years. Not only that, but it is the foundation for human rights. To subject this man, who has been so fiercely independent, so rigorously analytical, and so careful with his own body, to a process that would compromise him for no good reason would, to my mind, be a compromise of his dignity.
Reflections from Amber Dar
Observing this hearing led me to reflect on (a) the way the judge engaged with the family; and (b) the importance of making our wishes known in advance of losing capacity to do so. I will use what I’ve learnt from observing this hearing in my own professional role as a lecturer in law.
Judicial engagement with the family
The judge sometimes engaged with family members in ways that didn’t seem to be directly relevant to the legal issues. This seemed to be in the hope of building rapport with family, and understanding more about the patient as a person.
The two questions that Hayden J likes to ask, about whether the patient has a favourite meal and whether they support a football team, changed the tone. I cannot comment on how the family members felt about these questions. I do not know. Only those who have been in this situation can tell us how these questions made them feel at this time. As an observer, whilst I did not expect such questions to be asked, I think these questions allowed family members to reflect on memories about their loved one, at a time when all other questions are about serious medical matters.
When Hayden J noted that AB and Novak Djokovic are “both tennis players and they both like alternative remedies”, I was not sure how family members would feel about links being made to a news story that was attracting a lot of debate at that time, as full details of the tennis player’s circumstances were unfolding in the news each day over that week. Family members did not seem to mind any questions or comments related to Novak Djokovic, and indicated that AB’s brother did in fact share his views about the tennis player’s circumstances.
Making our wishes known in advance
This experience has shown me the benefit in making our views known to those we consider as close family members, both about alternative treatments and about DNACPR, in case we become unable to make decisions for ourselves, particularly if this were to happen very suddenly. We should perhaps also inform our GP in advance in writing (or make a formal advance statement or advance decision – more information available from Compassion in Dying). If the patient, AB, had done so in this case, then the family would not have needed to be cross-questioned in the way they were – especially if he had written it down.
Comments and discussion in this case also demonstrate the need for more awareness about Lasting Power of Attorney (LPA) and how these work.
An LPA is a legal document that allows you to appoint one or more persons (who will be known as your ‘attorney(s)’) to help you to make decisions or make decisions on your behalf if you were deemed to lack capacity and were no longer able to make decisions yourself. If, for example, you were seriously injured after being involved in an accident or you suffered from an illness and were at a stage when you could no longer make your own decisions, then your LPA would make best interests decisions on your behalf.
There are two types of LPA,: one that deals with decisions about health and welfare and another about property and finances, and you can choose to make both types of LPA or one type of LPA. It should be noted that this is the process for England and Wales, and a different process is followed in Scotland and Northern Ireland. For more information, see: www.gov.uk/power-of-attorney.
To make an LPA, you must be over the age of 18 and be deemed to have capacity to make your own decisions at the time you are going through the required process to make an LPA. An LPA can be made online or by using paper forms, but most importantly (as highlighted in this case) attorneys and witnesses must sign the relevant forms and the LPA must be registered with the Office of the Public Guardian (which can take 20 weeks or more, depending on whether any mistakes in an initial application need to be corrected). Note that, unless you qualify for a reduction based on earnings or an exemption, each LPA costs £82 to register.
Learning from observing
As a Lecturer in Law at the University of Birmingham, I teach on issues in healthcare law and ethics. I will be encouraging students to watch court hearings in the Court of Protection in future. In addition to watching family members give evidence, students have the opportunity to observe advocacy from barristers and how the judge engages with the evidence.
In this particular case, I was privileged to be able to observe the Vice President of the Court of Protection and I have learnt a great deal about the Judge’s approach when questioning family members, and when a Judge finds it necessary to take over questioning in order to get to the most relevant points during a hearing about a patient in a critical condition.
Reflections from Celia Kitzinger
One of the puzzles for me is why this case was in court at all – and, once the hearing started, why it took so long to resolve the issues, occupying the whole day, and running on beyond normal court hours until around 5pm.
If the doctors were not willing to provide treatments, the court cannot order them to do so.
“A patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patient’s clinical needs” (Burke v GMC  EWCA Civ 1003)
Doctors cannot be compelled to act against their clinical judgment – not by patients, not by families, not by people with Power of Attorney (even if properly registered), and not by the court.
Ivermectin and hydroxychloroquine
It emerged during the morning that the clinical team would not be willing to treat AB with either ivermectin or hydroxychloroquine.
This information was elicited from Dr G, the treating clinician, by Sophia Roper (for AB via the Official Solicitor) only after lengthy questioning of the doctor first by counsel for the applicant (in conjunction with the judge) and then by AB’s brother – with many questions focussing on the evidence base for the efficacy of non-mainstream medications in relation to COVID-19, their side effects, and safety records. This information would have been relevant to best interests decision-making if those medications had been options for the court to consider as an alternative, or an addition, to the mainstream treatments already being provided to AB. But as it turned out, they were not an available option.
It was clear as soon as the matter was addressed by counsel for the Official Solicitor (in her first cross-examination questions) that neither ivermectin nor hydroxychloroquine was an “available option”[iii].
I’m not sure why it took so long to ascertain this simple fact – which, as counsel for the Trust later pointed out, made the question of whether or not it was in AB’s best interests to receive these two medications entirely “academic”. If there are no treatment options, then the court has no effective choice to make.
In their position statement, dated the day before the hearing, the Trust framed up the matter solely in terms of “best interests” (apparently both in relation to the medications AB’s brother was requesting, and in relation to the CPR decision)
19. The applicant relies upon the approach in Aintree University Hospital NHS Trust v James  UKSC 67[para 22] “Hence the focus is on whether it is in the patient’s best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it.” (§22, Aintree University Hospital NHS Trust v James  UKSC 67)
So, the approach relied upon by the applicant was a best interests approach. In fact, however, as emerged during the hearing – treatment relating to ivermectin and hydroxychloroquine were not best interests matters at all. I’m also really not sure whether or not CPR was properly a matter for best interests decision-making.
Cardio pulmonary resuscitation
The matter of cardio-pulmonary resuscitation was more complicated because it was unclear to me (and perhaps to others) whether this treatment was an available option or not.
Dr G stated from the outset that the treating team would be “profoundly uncomfortable about providing futile CPR” and when counsel for the Trust asked early on whether they would be prepared to do CPR if the court ordered them to, the judge intervened to say that this was “not the point at which to ask this question”. I’m not sure why the judge took that view. Perhaps because he already knew , or suspected, that the answer was “yes” – and (as his follow-up question showed) he seemed more interested in establishing whether or not CPR was in AB’s best interests. There’s some logic to that too, of course, since if it’s not in AB’s best interests, then it wouldn’t matter whether or not it’s an available option.
The ambiguity about whether or not doctors were willing to carry out CPR (if AB were to have a cardiac arrest at his current level of ill-health) was not cleared up by the cross-examination of Dr G by Sophia Roper for the Official Solicitor:
SR: On CPR, are you saying you would be willing to give CPR if the court orders it, but your position is that it’s futile?
Dr: If we were asked to perform CPR, the entire clinical team would be very uncomfortable with this, and it would cause a lot of distress to the staff.
So he didn’t actually say he WAS willing to give CPR (or that he wasn’t).
Neither the Trust nor the Official Solicitor cited the case law concerning CPR in circumstances like these (at least not in their position statements, and not orally in court).
Case law on CPR as an ‘available option’
This case is far from being the first at which doctors have given evidence to the court that CPR is not the right thing to do for the patient – but it’s not always clear whether they are saying that it’s not clinically indicated (and hence not an available option for the court to consider) of whether they are saying it’s not, in their view, in the patient’s best interests.
This lack of clarity was explicitly addressed by Mr Justice Moylan in An NHS Trust v L & Ors  EWHC 4313 (Fam). A treating clinician gave evidence to the court that CPR for the patient, Mr L, would “seem cruel to all the medical professionals I have ever worked with“. The view of the independent expert, Dr Bell, is summarised in the judgment (§ 40 and 41):
40. Having regard to the very low rates of success of CPR generally, Dr Bell is of the opinion that in Mr L’s case such treatment is highly likely to be, what he described as, physiologically futile. In other words, that it would not, to put it starkly, stop Mr L from dying. It is likely to be unsuccessful because of Mr L’s physical and neurological condition and his underlying co-morbidities. Accordingly, if Mr L deteriorated in a manner which did not respond to other treatment and to the extent that he required resuscitation, then this would be highly likely not to be effective.
41. Dr Bell additionally points to what he describes as the “acknowledged harms of resuscitation and intensive care including fractured ribs and damage to internal organs”. He quotes from the General Medical Council’s 2010 guidance, “Treatment and Care Towards the End of Life”, which refers to the invasive nature of CPR interventions and states that: “If the use of CPR is not successful in restarting the heart or breathing, and in restoring circulation, it may mean that the patient dies in an undignified and traumatic manner.”
Mr Justice Moylan found himself in a dilemma in that it seemed clear that in this case (as in the case before Hayden J) the treating clinicians did not consider CPR the right thing to do for his patient. In Moylan J’s view, therefore, CPR was not an available treatment option. The judge explains his resistance to making a best interests decision under these circumstances, although he did finally do so (since none of the lawyers or doctors in the case agreed with him that CPR was not an available option) and decided that CPR was – in any event – not in Mr L’s best interests. Moylan J’s judgment is worth quoting at length (An NHS Trust v L & Ors  EWHC 4313 (Fam) § 111 – 117)
111. The nature of the Mr L’s situation as described by the medical witnesses led them to state in strong terms their opposition to the proposition that resuscitation should be attempted. None of the doctors who have given evidence would consider it appropriate to embark on resuscitation treatment. Dr S raised concerns that if doctors were to be required to provide such treatment in a case such as this, it would raise questions about the practice of intensive care in the whole country. Dr Bell said that if such treatment was undertaken it would result in Mr L’s death being characterised by a series of harmful interventions and would conflict with the fundamental medical principle of, “Do no harm”. Dr Bell described the approach taken by the treating clinicians in this case as the “predictable response” of critical care practitioners in this country. […]
112. This leads me back to the issue I addressed earlier in this judgment. Namely, that medical professionals cannot be required to provide treatment contrary to their professional judgement. It would clearly be inappropriate for the court to exercise its powers under the Mental Capacity Act in such a way as, to adopt the words from Re J , directly or indirectly to require a doctor to treat a patient in a way that was contrary to the doctor’s professional judgement and duty to the patient.
113. The Mental Capacity Act requires the court to exercise its independent judgement and to determine any application by reference to all the relevant circumstances. However, in my view, in the present context, one of the circumstances needs to be a choice of treatment options. If there are no treatment options, then the court has no effective choice to make.
114. In the present case, no counsel has advanced the argument that there are no treatment options. Ms Watson submits that this is because there is no clear evidence that the relevant treatment would not be recognised as proper by a responsible body of medical opinion. I do not agree with that submission. It is not a theoretical issue about the treatment in general. It is an evidential issue about the treatment options in the specific case. Does the evidence establish that there are treatment options? If it does not, I question whether the Court is entitled to assume that there are.
116. It is also submitted, correctly, that the court is entitled to disagree with medical evidence. A court is, indeed, entitled to disagree even with unanimous medical evidence. But, given that I cannot require a doctor to provide treatment contrary to their clinical judgement, a court must in my view be careful in exercising its jurisdiction under the Mental Capacity Act so as not to put doctors in the “impossible position” referred to by Balcombe J in Re J, directly or indirectly. That is why in applications of this nature the parties must specifically address in the evidence what treatment options are available. Those options must be treatments which are available. They must be treatments which would not require medical professionals to act in a way which was contrary to their professional clinical judgement.
117. I make these general observations because in my view the evidence in this case does not establish that there are treatment options.
A similar case before Mr Justice Hayden the year after Re L, concerned a resuscitation decision about a patient in a minimally conscious state (An NHS Foundation Trust v VT & A  EWHC B26 (Fam)). Like Moylan J, Hayden J conducted a best interests analysis (but without the preceding reflection as to whether this was appropriate) and found treatment not to be in VT’s best interests. The commentary from 39 Essex Chambers reflects on the question of whether, in fact, any clinicians would have been willing to administer treatment, and the implications of this for the way in which DNACPR decisions are made:
The evidence cited in the judgment suggests that it was highly unlikely that an intensive care team would have been willing to admit VT, or that the staff already treating him would have administered CPR, since, as the judge held, that would have been to cause harm to VT for no purpose. However, there was no positive assertion by any party that the option of receiving treatment was not in fact available (an issue which readers will recall troubled Moylan J in the Re L case recently). Despite the apparent absence of an ‘available option’ , the Trust no doubt applied to court because of the fundamental disagreement with VT’s family, but the lay observer may remain puzzled as to why so many public resources were expended in such circumstances. One explanation may be that there remains an unanswered question as to whether a clinician who says they would not provide treatment is making a clinical decision or a best interests decision. The decision of the Supreme Court in Aintree suggests that clinicians can make clinical decisions which the Court of Protection cannot interfere with, yet if the clinician’s decision relies heavily on their view as to the prospect of meaningful recovery for P, it is easy to see how the distinction between a clinical decision and a best interests decision will be more apparent than real. (An NHS Foundation Trust v VT, 39 Essex Chambers)
Is the distinction between a clinical decision and a best interests decision “more apparent than real”?
According to Victoria Butler Cole:
“DNACPR orders hover somewhere between the exercise of clinical judgment and the making of a best interests decision, with recent decisions by the courts placing them on the best interests side of the divide with a perceived lack of respect for clinical judgment” (“Do Not Attempt CPR orders and the law”)
I posed the question on Twitter: “Doctors of Twitter – why would you ask a judge to decide whether CPR is in a patient’s best interests when you have already arrived at a clinical consensus that CPR is futile/clinically inappropriate?”
A GP responded by describing the “confusion” between clinical and best interests decisions.
The predicament as I outlined it in in my tweet (“Family of COVID patient want CPR if cardiac arrest. Also ivermectin and hydroxychloroquine. Patient is in ICU, 100% ventilated, in renal failure, with sepsis”) was widely recognised, for example:
But the question of how to manage this “awful situation” of relatives “insisting” on “clearly futile” treatment” was troubling.
An intensivist told me (over the course of a tweet thread): “It is complicated. If the doctors are referring to the court other best interests decisions, it makes sense to also ask for a decision on CPR. There is a clear dispute with the family. The judge is reviewing expert evidence anyway – assuming the judge agrees, it avoids that being another source of contention with the family. But in a case where that is the primary reason doctors/trust may bring to court because they fear adverse publicity and being sued. Even if unlikely that court would side against doctors – risk is of career damaging/distressing attention. They may also be aware of cases like Glass where hospitals have been criticised for not seeking a court declaration in the setting of a dispute with a family.” (Dominic Wilkinson tweets)
A geriatrician explained that he’d apply to court to avoid complaints – and because the medical defence unions would recommend it. (The latter is common in my experience of working with cessation of clinically assisted nutrition and hydration for patients in prolonged disorders of consciousness, even when all parties agree that CANH is not in a person’s best interests).
According to Victoria Butler Cole (again) – and perhaps with reference to the case of An NHS Trust v L & Ors  EWHC 4313 (Fam) to which she alerted me,
Palliative care doctor, Idris Baker, seems to make that very distinction here, where “quantitative futility” means a low chance of success that the heart can be restarted (i.e. the person will remain dead), and “qualitative futility” embraces broader questions relating to quality of life.
The decision in Tracey seems not to be well understood and, in my view, has become a convenient scapegoat for broader failings in DNACPR decision-making. I am often told that clinicians are now somehow compelled to carry out CPR because of the Tracy decision despite this clear statement:
Prima facie, the patient is entitled to know that such an important clinical decision has been taken. The fact that the clinician considers that CPR will not work means that the patient cannot require him to provide it. It does not, however, mean that the patient is not entitled to know that the clinical decision has been taken. Secondly, if the patient is not told that the clinician has made a DNACPR decision, he will be deprived of the opportunity of seeking a second opinion. (§55, Tracey v Cambridge University Hospitals NHS Foundation Trust & Ors  EWCA Civ 822, my emphasis)
There is also excellent guidance on the NHS Website on “Do not attempt cardiopulmonary resuscitation (DNACPR) decisions”
But despite the guidance, it seems to me as a member of the public – who might be subject to CPR against my wishes, or counter to my best interests (or both), or from whom it might be inappropriately withheld – the whole situation looks a mess.
I don’t have much confidence that there is widespread compliance with law and good practice guidance when clinicians make decisions about CPR. My personal experience with doctors when I explain I am DNACPR regularly reveals huge gaps in understanding the law in this area.
It doesn’t help that the courts are (in my experience) also unclear about the status of clinical decisions relating to CPR and that judges are (as I understand it) engaging in best interests considerations in relation to treatments that are – or may be – unavailable as options.
If doctors are not willing to provide a medical treatment (and I recognise that part of the problem may be their reluctance to state clearly that they won’t), then since the court cannot compel them to do so, it’s not clear to me what the basis is for conducting a Court of Protection hearing. I recognise that there may be benefits to the people involved (to the family in feeling ‘heard’, to the doctors in ensuring they have legal backing for their position and can’t be sued), but there are also costs, both financial (in particular to the public purse) and medico-ethical or social – because these hearings seem to me further to blur the boundaries between clinical and best interests decisions, where I would want clarity. Perhaps, though, the blurring is inevitable?
In a Court of Appeal case, Re AVS  EWCA Civ 7, the fact that a treatment was – in practical terms – unavailable (because there was no clinician to administer it) was confronted head on, and the outcome was that an appeal court hearing was refused.
“This is a case about providing medical treatment for a patient who has been declared to lack capacity to make decisions as to his treatment and care. The problem in the case is that at the moment there is no medical practitioner ready and willing but also able to provide the treatment which the patient’s next friend considers should be given to him.”
The patient had Creutzfeldt Jakob’s Disease and was now in a prolonged disorder of consciousness. His brother (who also held Lasting Power of Attorney) believed he had found a treatment that would help and when this was not approved at first instance, he applied for permission to appeal. This was refused on the grounds that, without a clinician able and willing to provide treatment, the matter was “purely hypothetical” (§38) or – as was also finally concluded by the Trust in the case on which this blog post focuses – “wholly academic” (§39)
Lord Justice Ward said in the judgment (with which Lord Justice Patten and Lady Justice Black agreed):
“…continuation of this litigation by permitting a lengthy hearing to be urgently arranged for numerous busy medical practitioners to be cross-examined truly would be “doomed to failure”. If there are clinicians out there prepared to treat the patient then the patient will be discharged into their care and there would be no need for court intervention. If there is no-one available to undertake the necessary operation the question of whether or not it would be in the patient’s best interests for that to happen is wholly academic and the process should be called to a halt here and now.” (§39, Re AVS  EWCA Civ 7).
I’ve observed numerous serious medical treatment cases at which doctors have given explicit evidence that they consider treatment “futile”, “burdensome” and “ineffective” and that in their professional judgment they should not provide it (albeit often with the possible implication that if the court were to order them to do so they would submit, unwillingly, to its authority).
I am left with many questions.
Is there something that doctors and lawyers could do, collaboratively, to make these cases less painful for everyone? Could doctors be encouraged to be clear about which treatments they would actually decline to administer to their patients – as the treating clinician in this case declined to administer ivermectin, hydroxychloroquine, and azithromycin? What are the consequences of such refusals, given that there may doctors elsewhere who are apparently willing to prescribe these treatments? On what basis can CPR be properly considered “futile” and distinguished from a ‘best interests’ decision?
And is it really necessary for a court to do what Hayden J described as “perhaps the most controversial issue in this case … authorising that CPR should not be undertaken where it is assessed by the clinical team as futile”. Under what circumstances is futile treatment properly the subject matter of best interests decision-making?
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
Amber Dar is a Lecturer in Law at Birmingham Law School, University of Birmingham. Her research and teaching has focussed on child and family law and healthcare ethics and law. She tweets @amberdar02
[i] A subsequent exchange between Mr Justice Hayden and the treating clinician went like this:
Judge: Any obvious comorbidities?
Doctor: Hypertension, but nothing else, no.
Judge: Is hypertension a recognised comorbidity?
Doctor: Yes it is, My Lord.
Judge: (laughs) Oh! Oh dear. I’m sorry to hear that. Right.
This exchange taught me (Celia) – as it maybe also did the judge – that, as someone with hypertension, I have a “recognised comorbidity” for COVID-19 and have perhaps been more sanguine than I should about my risk factors.
[ii] Celia Kitzinger is co-director of the Coma and Disorders of Consciousness Research Centre. She is not aware of any such cases.
[iii] Nobody suggested sending AB abroad for treatment that doctors are declining to provide in England, as has been proposed in some other cases (blogged here, and here). In 2021, in the United States alone, there were more than 560,000 prescriptions of hydroxychloroquine for the prevention, post-exposure and treatment of COVID-19. There are also websites listing doctors who’ll prescribe ivermectin for COVID-19 (including international shipping of the medication).