In 2014 GU, a 63-year-old pilot, was electrocuted whilst cleaning his pond. He suffered a cardiorespiratory arrest; his subsequent ischaemic brain injury may have been exacerbated by drowning. After a significant delay, his cardiac output was restored, and he was ultimately transferred to a hospital for patients with neuro-disability. He remained unconscious, with no signs of awareness. Other than for several infections, he remained stable and physiologically well. During many neurological assessments over the ensuing years, he never demonstrated any evidence of communicative intent, verbally or non-verbally. He ‘… remained fully dependent on others to anticipate his needs and act in his best interests'. In 2017/2018 his brother requested a review concerning GU's gastrostomy nutrition and hydration. His view was that GU's life should not be sustained by continued CANH and that withdrawal was in GU's best interests. In response, the hospital noted that the rest of the family disagreed, so that care should continue. GU's case had come to court because the Official Solicitor (representing the interests of incapacitated people) was concerned that no formal assessment of his best interests had ever been undertaken during the 7 years of unconsciousness and hospitalisation.
Counsel for the Official Solicitor submitted that there was '...inordinate and inexcusable delay (on the part of the hospital) in giving consideration to the issue of whether continued treatment was in GU's best interests, and in taking steps to enable the Court to determine the issue in the absence of family agreement'. She later described this situation as a '...complete abrogation of responsibility to consider properly …or determine whether it was in GU's best interests and therefore lawful to continue to give him an invasive medical treatment, CANH'.
The outcome of the case was that the Judge declared that it was not in GU's interests to receive clinically assisted nutrition and hydration, so this was withdrawn, after which GU died peacefully in June 2021.
The court took the opportunity to signal and analyse the notion of human dignity, given the finding that at the very least, GU's dignity had been very severely compromised for several years.
Following an analysis that seems likely to be referred to in countless future judgments, Hayden J recognised that whilst there is and can be no defining characteristic of human dignity, the pre-eminence of personal autonomy is clear. There is a universal understanding that 'being human' is a unique quality, and that solely because of this quality we have a right to be valued, respected and treated ethically which must not be violated. He made the point that rather than being merely a facet of human rights, dignity is the foundation stone upon which those rights are based. For these reasons, '...the protection of human dignity and the rights that flow therefrom is to be regarded as an indispensable priority'. From all of this flows an obligation on the State to protect the dignity of its citizens. One only needs to look at the world map to reflect on where that obligation is not being honoured.... since protecting citizens’ dignity perforce avoids discrimination.
The judgement closed by citing clinically relevant advice: 'There is an innate dignity in the life of a human being who is being cared for well, and who is free from pain. There will undoubtedly be people who for religious or cultural reasons...prefer to, or think it morally right to, hold fast to life no matter how poor its quality or vestigial its nature. Their choice must be respected. But choice where rational, informed and un-coerced is the essence of autonomy. It follows that those who would not wish to live in this way must have their views respected too...
If we are serious about protecting autonomy, we must accept that autonomous individuals have different views about what makes their lives worth living. There are many, many people who can live with a grave permanent disability.... but those same people might find it impossible to live with the loss of a much-loved partner or child, or with permanent disgrace, or even with financial ruin.'
Rarely has the common law provided us with such realistic advice, relevant to the dilemmas and conflicts that we, and our patients, encounter daily.
The case provides a reminder; that the relevant question is not whether life prolonging treatments should be withdrawn in the best interests of an incapacitated person. Rather, whether treatment should be continued.
Department of clinical law