This case concerns an application regarding the proposed withdrawal of clinically assisted nutrition and hydration (CANH) in respect of Mrs Jillian Rushton, aged 85 years old.
This was brought before Mr Justice Hayden on 21 December 2018.
- Mrs Rushton’s health started to decline in August 2014 when she was admitted to hospital with pneumonia.
- Upon discharge from the hospital, there was also a gradual decline in her general cognitive functioning. Mrs Rushton was often agitated, weepy, distressed and quick to anger – her personality was different. She had communicated that she ‘did not want to wake up in the mornings’ and missed her husband, who had passed away.
- In due course, Mrs Rushton was diagnosed with cerebral vascular disease. This affected her balance and caused her to experience frequent falls, which caused her to lose her confidence and feel vulnerable.
- Her son, TR, assumed the role of her carer. Mr Justice Hayden had picked up on the fact that TR was ‘plainly burdened with a sense of his own inadequacy, perceiving himself (entirely wrongly) as not having done enough for his mother, or of not having cared sufficiently’.
- On 21 December 2015, Mrs Rushton fell and suffered a major trauma to her head – she was not expected to survive and was placed on a palliative care plan. On admission, following this fall, a naso-gastric (NG) tube was inserted to feed Mrs Rushton. When her condition improved, the NG tube was replaced by a percutaneous endoscopic gastronomy (PEG) in January 2016. This was done, in part, to facilitate her care back at home with TR.
- Prior to this deterioration of health, on 24 July 2014, Mrs Rushton had signed an Advance Decision (AD) in which she indicated her refusal of treatment in certain circumstances. Mrs Rushton stated in her AD (which was sent to her GP and kept on file) that ‘on collapse, I do not wish to be resuscitated by any means’. ‘I am refusing all treatment even if my life is at risk as a result’ and ‘in all circumstances of collapse that put my life at risk, this direction is to be applied’.
- In this case, Mr Justice Hayden, stated that the initial insertion of the NG tube was arguably incompatible with Mrs Rushton’s wishes and that the insertion of the PEG was contrary to her written decision, as the PEG was essentially life-sustaining treatment in circumstances where there was little, if any, prospect of meaningful recovery, as was the case here.
- From the clinical notes that provided the background to the decision-making, Mr Justice Hayden stated that it appeared that the AD had not been available at the hospital. However, the document became known after a phone call was made to Mrs Rushton’s GP on 26 January 2016. The GP contacted the ward and advised that the only AD in place was a do not resuscitate (DNR) decision. The GP is reported as having said that he had no knowledge of any other document. Mr Justice Hayden infers that, at some point in relaying the contents of Mrs Rushton’s AD, it had been incorrectly interpreted. However, Mr Justice Hayden was not asked to investigate where the responsibility for this lay.
- From the medical notes, it can be seen that the consensus was that Mrs Rushton was in a persistent vegetative state. Professor Wade, a professor of neurorehabilitation, was resistant in identifying Mrs Rushton’s condition as a persistent vegetative state. Professor Wade believed a holistic evaluation of her best interests was required in the context of her wishes and feelings, in which her level of consciousness played a part. This goes hand-in-hand with the recent guidance ‘Clinically-assisted nutrition and hydration (CANH) and adults who lack the capacity to consent’ by Royal College of Physicians and the British Medical Association, which noted that the importance for having a precise and definitive diagnosis has been reduced. In practice courts and clinicians, when assessing best interests, recognise that information about the patient’s current condition and prognosis or functional recovery, together with the level of confidence with which these can be evaluated, is of greater importance than a precise diagnosis.
- TR considered his mother responsive whereas Professor Wade considered her movements reflexive.
- Mr Justice Hayden said it should be self-evident that the medical profession must regard ADs with the utmost care, attention and scrutiny. Whilst he was confident that the profession does do so, he did not believe that sufficient care and scrutiny took place in this case. He explained that, where ADs have been drawn up and placed with GP records, there is an onerous burden on the GP to ensure that they are made available to clinicians in hospitals.
- Mr Justice Hayden stated that it was clear that Mrs Rushton would not have regarded her present situation as tolerable.
- Mr Justice Hayden evaluated the care plan for Mrs Rushton. It was obvious to Mr Justice Hayden that she had been well cared for. However, he decided that she would have wanted to be let go and would have hoped that her wishes, stated in her AD, would have been applied under the circumstances.
This decision is an important decision concerning the autonomy of a patient to make a capacitous AD.
There is an emphasis on the importance for medical professionals to ensure that they are in receipt of accurate information regarding a person’s AD. This will ensure that the person’s advanced wishes and feelings are fully respected in circumstances where these are very clearly set out.
The decision also makes clear that the burden is on GPs to ensure that hospitals, caring for their patients, have access to a copy of the AD to ensure that they are in possession of the complete and accurate details of the decision.