A woman left with irreversible brain damage and diagnosed as being in a permanent vegetative state is to be allowed to die with dignity after a judge dismissed reports by two “shocked” therapy assistants that she may have repeatedly whispered the word "die".
Mr Justice Roderic Wood, sitting in the Court of Protection in London, ruled that "J", 56, who suffered a catastrophic heart attack in September 2010, is in a permanent vegetative state (PVS) "with no sense of awareness and no prospect of recovery".
The judge dismissed reports by the therapists that on one day last December J began to cry and and twice said she "wanted to die" - and then reportedly whispered "die, die, die" ten times.
Rejecting this "one-off" incident as evidence that J may not be in a vegetative state, the judge accepted expert evidence that J's "vocalisation" - meaningless noises that could be made by PVS patients - had been "innocently misinterpreted" as "verbalisation" by the therapists.
The judge said the overwhelming weight of medical evidence supported highly distinguished and experienced doctors who had diagnosed J as being in a vegetative state.
The judge declared it lawful and in the "best interests" of J, who is divorced and childless and being cared for at a neurological rehabilitation centre, for doctors and a local health board to withdraw artificial nutrition and hydration (ANH).
"There are no further investigations and treatment which should be undertaken," said the judge.
He ordered that J, who cannot be named for legal reasons, should receive "such treatment and nursing care appropriate to ensure she retains the greatest dignity until such time as her life comes to an end".
The judge described how J had suffered a prolonged cardiac arrest that resulted in "irreversible brain damage of a catastrophic nature".
Although resuscitated, she never truly recovered and was now incapable of independent living or making decisions about whether life-sustaining treatment should be withheld.
Medical experts who had seen J had agreed she was "wholly unaware of herself or her environment, and there is no possibility of change".
The Official Solicitor, appointed to represent J's interests, supported the health board's application to withdraw nutrition and allow her to die.
Her only surviving relatives, a cousin and his wife who had regularly and frequently visited J over the past two years, also supported the application.
The cousin stated J "would not wish to live in her current state".
Extensive observations had been made by doctors, nurses and healthcare staff over an extended period, from October 2011-May 2012, at different times of the day and night.
The "overwhelming evidence" was that J had not engaged "in any meaningful responses or purposive actions".
Professor W, a distinguished neurological expert, had reviewed her case. He gave evidence that, although her eyes opened and closed in a sleep cycle, there was no evidence of her "waking" or being capable of volitional responses.
Mr Derar Badwan, a rehabilitation consultant appointed by the court to look at the case, agreed that she was in a vegetative state.
The judge said evidence that appeared to run contra to that diagnosis had come from therapy assistant "SK" and a young student therapist "CP" at the neurological rehabilitation centre where J is being cared for.
Notes from J's nursing record for December 16 last year showed the therapists went to J's room to provide massage and stretching exercises.
Both agreed that on that day "J appeared very alert this morning". At some stage "she began to cry".
The judge said SK had described in a recent witness statement how, when J's feet were being massaged, she had become "very vocal - grunting, moaning".
SK also reported that J had said "that she wanted to die".
SK said in her statement: "I was shocked. I said, 'can you tell me that again?'
"J found this extremely hard. I waited for about 10 minutes holding her hand and then she repeated that she wanted to die which was much clearer than the first time I heard her try to speak.
"I would describe the way she spoke as quiet, strained and gruff.
"After this she whispered 'die, die, die, die, die' ten times."
SK said J had also whimpered, moaned and grunted during the session.
Asked whether J had enunciated her words clearly, CP said in a witness statement: "As she was crying I heard J make a sound like the word 'die'.
"Her voice was 'throaty' and quite deep as if she was forcing the sound out," said CP.
"I think SK asked her some questions and I asked if there was anything she wanted to say.
Asked about the actual words she heard, CP stated: "What I heard sounded like the word 'die'. I felt quite shocked and upset at the time.
"It was the repetition of the same sound which disturbed me. It was a different sound to any I had heard J make before."
The judge said in PVS cases it was useful to draw a distinction between "verbalisation", which did not occur with a patient in PVS, and "vocalisation", including moaning and groaning, which could occur and often did.
Mr Badwan, a rehabilitation expert with long experience, had stated verbalisation could often be misinterpreted as vocalisation, said the judge.
Professor W had told the court: "Misinterpretation is extremely common in this situation."
It was "entirely natural and normal and a human characteristic to attribute meaning" even when there was no such meaning present - "sounds are often interpreted as words".
Prof W had stated it would not be surprising if a moaning or groaning noise sounded like the word 'die', and it would not be unusual for that noise to be repeated".
The judge said: "Overall I have come to the conclusion, as have these two experienced doctors, that it is improbable that J was capable of forming a sentence however simple a one, and her vocalisation was innocently misinterpreted by SK and CP.
"The overwhelming weight of evidence from all sources in this case support the joint diagnosis of Mr Badwan and Professor W."
The judge said he agreed with the doctors' analysis and declared that J should be allowed to die.
The judge said, according to case law: "The sanctity of life is not absolute and there is no absolute duty to prolong it.
"A medical practitioner is no longer under a duty to feed or hydrate when it is established no benefit would be conferred by its continuance."
Withdrawal was not a breach of human rights.
The test the court had to apply was what was in the patient's best interests.
The judge said: "Existence in a vegetative state with no prospect of recovery is 'not a benefit'. Futility of treatment justifies its termination."
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