Hospital faces test case over death decision

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Health Editor

A trust hospital which plans to withhold treatment from a severely handicapped patient if he suffers a life-threatening crisis may now have to defend its decision in the High Court in what is believed to be the first case of its kind.

Lawyers acting for Patient A, a 23-year-old man with a congenitally malformed brain, cerebral palsy and serious epilepsy, are seeking to overturn the decision by the South Buckinghamshire NHS Trust, where he has been treated for a number of years.

The lawyers say the case raises right-to-life issues "of very great moral, ethical, medical and legal difficulty", and has far-reaching implications for all NHS hospitals which operate so-called "do not resuscitate", or DNR policies.

Patient A is, at present, not thought to be in pain or suffering. He can interact with other people and his surroundings, and make clear his needs in a non-verbal way, according to his lawyers. In this way, the case differs from those involving patients in the type of coma known as a persistent vegetative state (PVS), such as Tony Bland, the Hillsborough football disaster victim, who was allowed to die after a long legal battle. Mr Justice McCullough yesterday agreed the new case "clearly raises a matter of great public importance" and ordered an urgent hearing, as he gave leave for an application for judicial review.

The case came to light after a social worker became concerned about the trust's DNR policy for Patient A, introduced last September with the agreement of the man's parents.

A direction of DNR on a patient's notes indicates that he or she is not to receive cardio- pulmonary resuscitation in the event of a heart attack or other crisis. It is not uncommon in hospitals, particularly for the elderly and very frail, and the usual basis for applying the policy is an "unacceptable quality of life" if they are revived.

Stephen Cragg, Patient A's lawyer, last night welcomed the judge's decision. Mr Cragg, from the Public Law Project, a national legal charity which aims to increase access to public law remedies for disadvantaged groups, said: "We say the trust has no right to decide whether a person's quality of life is unacceptable or not."

Although the parents' views were important, it was not their place to consent or refuse, nor was it in their power to decide whether their adult son, who was "his own man", lived or died, Mr Cragg said. "This is a test case which is likely to lay down important guidelines. It will be the first to decide whether `quality of life' per se can be the basis on which treatment can be withdrawn from a patient." At the full hearing, lawyers for A will argue that the policies are "unlawful, irrational and not in the patient's best interests".

The judge gave leave for a judicial review application, which will consider the public law issues raised by the case, to be heard in the High Court Family Division at the same time as a separate application is made by the Trust to the same judge for a declaration as to A's rights in private law.