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The Importance of a Natural Death

View profile for Salil Kumar
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Leeds Teaching Hospital v JF [2018] EWCOP 32 (Cohen J)

Introduction

We acted for CH who is the sister of JF in a serious medical treatment case where the hospital were applying to court to remove the tracheostomy tube that was in place as they felt that JF’s prognosis and recovery was poor. CH and her family didn’t want JF’s life to be brought to a hasty end and wanted her to have a natural death in accordance with her religious beliefs.

Background

JF was a 46 year old lady, who had breast cancer, and had only a number of months to live. Whilst in the taxi on the way to the hospital to seek assistance after complications with oral medication for her cancer, she suffered a cardiac arrest. For 20 minutes or so ceased breathing and suffered a severe hypoxic injury. In consequence she suffered a very significant and severe brain injury. She remained essentially unconscious. There was no anticipation of any significant improvement in her neurological condition, certainly within the life expectancy of her cancer which was some six to eight months.

Three issues were before Cohen J. The first was whether a tracheostomy tube should be removed; it had been inserted (following approval at an earlier interim hearing) to replace an oral tube which had been causing increasing discomfort and was causing irritation. The Trust sought removal of the tube because they considered that nothing more should be done to extend or prolong JF’s life.

Removal of the tube would have the effect (but not the purpose) of hastening her death, either because JF would “die either by infection of the secretions [that would build up] or would drown.” The family, and the Official Solicitor, wanted to keep it in place; the judge accepted their contention that JF would want a natural death, such that it “would need a very good reason to hasten it in this way.” Cohen J came to the clear view that the tube should remain in place.

The second issue was as to whether or not JF should receive an escalation of invasive care or treatment, in particular vasoactive drugs, renal replacement therapy, ventilation treatment that requires central venous action or CPR. There was agreement in relation to all of these in relation to antibiotics, which the family wanted on the basis that this was “treatment for a super imposed condition which would not cause her natural death if treated.” Cohen J held that antibiotics do not need to be provided in the event of there being an infection and that it would not be in JF’s best interests to provide treatment to seek to avert what would be a natural death.

The last issue was in relation to the administration of morphine. Although JF did not discuss her health in a significant way with her family, she and other members of her family did have a fixed objection to morphine. That came from the fact that two members of the family had died at a time that they were taking morphine which had been prescribed for them as a result of very serious health difficulties which they themselves had. The family had formed the view that morphine had played some part in the demise of those two relatives. Although JF was not yet far up the analgesic ladder potentially to require morphine, the evidence from her treating team was that there was no better substitute to morphine. However, her treating doctor accepted that “if a conscious patient had been able to make a balanced decision that he or she did not want morphine he would not seek to impose it upon the patient.” Cohen J noted that he, “of course, ha[d] to take the decision for others, but I bear in mind the strong family opposition shared by JF to the use of morphine.” He therefore authorised medications, but not morphine. However, he gave the Trust permission to apply in relation to morphine if in due course it transpired that there is no alternative that might be able to do the job. As he noted:

Whether the court will order it will depend on the circumstances at that time, but if all other avenues have been exhausted it seems to me that it would be quite wrong for me to bar the treating team from a position of being able to apply for permission to use morphine in circumstances where their conscience makes this, not only highly desirable, but something that should be imminently implemented.

Comment

In this case, we assisted the client with mediation with the hospital prior to the final hearing. This was a very useful process in improving the family’s understanding of JF’s condition, prognosis and treatment. This assisted them in putting forward JF’s wishes and feelings in terms of her strong religious views to die a natural death and to not take steps that may hasten death (remove the tracheostomy tube or administer morphine).

It is interesting that the Office of the Public Guardian (OPG) are carrying out their own pilot this year on an OPG mediation service which might help protect vulnerable people. A link to the OPG blog on this pilot is below for your information.

https://publicguardian.blog.gov.uk/2019/02/18/testing-how-an-opg-mediation-service-might-help-protect-vulnerable-people/

This blog indicates that the OPG will be carrying out this pilot until summer 2019 and it would be interesting to see the results of this pilot to see whether mediation has been an effective tool in resolving disputes and whether the OPG intends to procure a long term mediation service in the future.

How we can help

If you or someone you know needs advice regarding medical treatment or health and welfare issues, best interests decisions or deprivation of liberty, please contact our Court of Protection Team on 0113 245 8549 and we would be happy to assist.