Nageena Khalique QC represented the children of a mother of eight who suffered a hypoxic brain injury following a cardiac arrest just 6 weeks earlier and had been diagnosed as being in a vegetative state.
University Hospitals Birmingham NHS Foundation brought an urgent application in the Court of Protection when the mother developed a high temperature and suspected pneumonia, seeking a declaration that it was in her best interests not to be resuscitated or provided with life sustaining treatment should she deteriorate and suffer from another cardiac arrest.
Her family opposed this plan and asked for the DNACPR notice to be removed from her medical records. The family’s evidence was that their mother would have wanted to all steps to be taken to save her life based on her religious, cultural and family values. She had discussed this with them following an earlier health scare a few weeks before her cardiac arrest.
Nageena argued that it was too early to know whether the mother would make any neurological recovery and that the Royal College of Physician’s guidance in respect of Prolonged Disorders of Conciousness stated that a diagnosis of permanent vegetative state could not be made until 6 months after the event and a series of special neourological tests would need to be undertaken. It was not possible to predict the quality of life she might yet have or that her condition would be so burdensome or “futile” as to weigh against the presumption of life.
The independent expert, Dr Chris Danbury, gave evidence that it was too early to know how the mother would progress and cited examples of analagous patients, one who made a remarkable recovery and another who had died soon after their brain injury.
Mr Justice Keehan rejected the hospital’s application. Nageena argued successfully that the mother’s wishes and feelings, clearly expressed on this issue, were of magnetic importance when looking at the checklist of factors which the court must consider under section 4 of the Mental Capacity Act 2005. She emphasised that the independent expert opinion was supportive in stating that it was too soon to withold CPR and life sustaining treatment. As such the presumption in favour of preserving life remained strong. Keehan J agreed and said it was too soon to make a do-not-resuscitate decision and that it was “plain” that she would have wanted CPR had she been able to make the decision.
Meanwhile, the court heard that the mother had recovered from the suspected penumonia after a short course of antibiotics.