Sheffield Teaching Hospitals NHS Foundation Trust v TH & Anor  EWCOP 4 (Hayden J)
TH is a 52 year old man who is in a minimally conscious state. He was admitted to hospital in February 2014 with a pre-existing serious neurological disability called Central Pontin Myelinolysis, Wernicke-Korsakoff syndrome, suffering from epileptic seizures thought to be due to alcohol withdrawal and hyponatremia. This interim judgment sets out the court’s reasoning for adjourning a decision as to whether the continued provision of ANH to TH is in his best interests, despite the apparently clear evidence that whatever the precise details of TH’s conscious awareness, he would not have wanted to be kept alive in this condition, which was said by his treating clinician to be permanent and irreversible. The judge stated, having heard from a number of TH’s friends and his ex-partner of 20 years that he was “left in no doubt at all that TH would wish to determine what remains of his life in his own way not least because that is the strategy he has always both expressed and adopted. I have no doubt that he would wish to leave the hospital and go to the home of his ex-wife and his mate's Spud and end his days quietly there and with dignity as he sees it. Privacy, personal autonomy and dignity have not only been features of TH's life, they have been the creed by which he has lived it. He may not have prepared a document that complies with the criteria of section 24, giving advance directions to refuse treatment but he has in so many oblique and tangential ways over so many years communicated his views so uncompromisingly and indeed bluntly that none of his friends are left in any doubt what he would want in his present situation.” However, further medical evidence including a SMART assessment was required in order that the court had the best medical evidence before it in order to determine whether fulfilling TH’s likely wishes was in his best interests.
In his concluding remarks, Hayden J noted that:
“55. I must record that the Official Solicitor's lawyers appear not to share my analysis of the cogency and strength of TH's wishes regarding his treatment. I confess that I have found this surprising. If I may say so, they have not absorbed the full force of Baroness Hale's judgment in Aintree and the emphasis placed on a 'holistic' evaluation when assessing both 'wishes and feelings' and 'best interests'. They have, in my view, whilst providing great assistance to this court in ensuring that it has the best available medical evidence before it, focused in a rather concrete manner on individual sentences or remarks. To regard the evidence I have heard as merely indicating that TH does not like hospitals as was submitted, simply does not do justice to the subtlety, ambit and integrity of the evidence which, in my judgment, has clearly illuminated TH's wishes and feelings in the way I have set out.
56. I reiterate that whatever the ultimate weight to be given to TH's views it is important to be rigorous and scrupulous in seeking them out. In due course the clarity, cogency and force that they are found to have will have a direct impact on the weight they are to be given. 'Wishes' and 'best interests' should never be conflated, they are entirely separate matters which may ultimately weigh on different sides of the balance sheet. ”
This interim judgment is of particular interest in light of the efforts made by the court to ascertain TH’s likely wishes about the continuation of ANH, despite the absence of any written advance decision to refuse treatment in such circumstances. Some readers may wonder why, having ascertained with some clarity what TH would likely have chosen, the further evidence and continued court proceedings are required – could it really be in TH’s best interests for the end of his life to be determined by others in a way that he would have rejected, notwithstanding his inability to appreciate what is happening? The case has already received some coverage in the media, and it is to be hoped that when the court’s final decision is made, publicity is given to the significance of creating an advance decision to refuse treatment, or a welfare LPA, in order to avoid drawn out court proceedings at the end of one’s life.