She got what she wanted and when it was all over she smiled. But this was the most pyrrhic of victories, granting the woman who has come to be known simply as Miss B none of the prizes normally associated with historic court cases: the right to live; the right to justice; the right to freedom. This victory gave her only the right to die.
There was no cheering and, in her hospital room, tied as she had been for more than a year to her hated ventilator, there can have been no vicarious sense of joy among the friends gathered at her bedside.
Miss B, 43, a highly intelligent social care professional, paralysed from the neck down after a haemorrhage of the spinal column, had taken on the might of an NHS trust and doctors who had refused to switch off her ventilator. She had won a victory for us all. Never again may a clinician administer treatment against the will of a mentally competent patient.
Judging that Miss B did indeed have the capacity to ask for an end to ventilation – and certain death – Dame Elizabeth Butler-Sloss, President of the Family Division of the High Court, ruled yesterday that doctors' treatment of her, against her wishes, amounted to unlawful trespass and awarded her nominal but highly symbolic damages of £100.
The judgment was a high-tech affair, as was the two-day hearing two weeks ago, with Dame Elizabeth handing it down by videolink from Birmingham Crown Court, where she is hearing another case. On large screens in the Royal Courts of Justice, three boxes appeared: one containing the court in London where the lawyers in the case had gathered; one showing Miss B in bed, a sheet tucked up under her chin; and one in which the judge was to appear.
The instant Dame Elizabeth's face came on to the screen, the view of Miss B was switched off. No one could see her reaction but she had been informed of the judgment beforehand. "The claimant has, since 8 August, 2001, [when a psychiatrist declared her mentally competent] the necessary mental capacity to give consent or to refuse consent to life-sustaining medical treatment," said the judge. "The administration of ventilation by artificial means by the defendant against the claimant's wishes since 8 August has been unlawful trespass."
Dame Elizabeth said the trust, which is in the South-east of England, and any other hospital to which Miss B is transferred, must comply with her wishes and give her, "appropriate drug treatment (including pain-relieving drugs) and palliative care to ease her suffering and permit her life to end peacefully and with dignity".
It was not until the judgment had been read out, granting her unconditional victory, that Miss B re-appeared on the monitor. Only then, when Robert Francis QC, counsel for the NHS trust, got to his feet to capitulate and to apologise, did we see her reaction.
Her head leaning slightly to the right to see and hear the barrister, she smiled.
"The trust fully accepts your ladyship's decision and it has no intention of appealing," said Mr Francis. "I would like to express regret for any distress it may have unintentionally caused her."
That apology was important. When Dame Elizabeth visited Miss B in hospital, the patient had demonstrated anger and frustration that her wishes were not being carried out. Two psychiatrists who at first agreed she was competent to decide her own fate, had changed their findings within days to say she was not. Then her doctors, who felt switching off the machine would make them responsible for her death, drew up a "one-way weaning" programme that would have led her off the ventilator and on to death after three weeks.
Miss B, who came to the UK from Jamaica when she was eight, had worked in a hospital herself, and said the drawn-out weaning process would have been a painful death that would have resulted in her body becoming septic. That was not lost on Dame Elizabeth. "I have to say, with some sadness," she said, "that the one-way weaning process appears to have been designed to help the treating clinicians and the other carers and not in any way designed to help Miss B."
The trust, she added, had failed her. But there were words of praise, too. "Throughout the sad developments of this case, all those looking after Miss B have cared for her to the highest standards of medical competence and with devotion," Dame Elizabeth wrote.
"They deserve the highest praise. Ironically, this excellent care has to some extent contributed to the difficulties for the hospital.
"The request from Miss B, which would have been understood in a palliative care situation, appears to have been outside the experience of the Intensive Care Unit in relation to a mentally competent patient. It was seen by some as killing the patient or assisting the patient to die and ethically unacceptable."
Afterwards, Miss B issued a statement through her solicitors. "This is a balanced and well thought out judgment and I am very pleased with the outcome," she said. "For this NHS trust, the most positive outcome would be for them to take heed of the judgment and put in place proper governance arrangements for dealing with these issues."
Frances Swaine, her solicitor, said no decision had been made on when Miss B would exercise her right to die. But perhaps an uncharacteristically emotional outpouring in Dame Elizabeth's judgment best summed up the subdued feeling outside the court. She wrote: "I would like to add how impressed I am with [Miss B] as a person, with the great courage, strength of will and determination she has shown in the past year, with her sense of humour and her understanding of the dilemma she has posed to the hospital.
"I hope she will forgive me for saying, diffidently, that if she did reconsider her decision, she would have a lot to offer the community at large."Reuse content