The case of University Hospitals Birmingham NHSFT v HB  EWCOP 39 concerns an application made by the trust to rule out further treatment if a patient’s condition were to deteriorate.
The protected party in this case is “P”, a 61-year-old woman who collapsed and suffered a cardiac arrest at home in July 2018. On admission to hospital P was assessed as having a low level of consciousness. As a result she was transferred to the intensive care unit to receive supportive care, and a later test demonstrated that P’s brain cortex was not functioning.
Following a best interests meeting, it was determined that the main therapeutic goal should be to facilitate P being discharged to a neurological rehabilitation hospital. At this meeting, one clinician noted that “P values being alive, irrespective of her ability to function physically or not to have any mental capacity". A two part treatment plan was therefore formulated. The first part involved the placement of a tracheostomy followed by an attempt to liberate P from the ventilator. After 48 hours of continuous liberation from the ventilation, P would then be referred to a specialist care hospital.
The second part of the plan was around the administration, or otherwise, of CPR. Although P’s daughter agreed with the first part of the plan she considered it to be her mother’s wish to receive CPR in the event of a cardiac arrest or other complications, due to a conversation she’d had with P following a previous hospitalisation. Ultimately though, it was agreed by the clinicians that CPR would not be performed if P were to suffer a cardiac arrest.
Although P’s tracheostomy was successful, her condition later deteriorated and her neurological status showed no improvement. Due to P’s co-morbidities (heart failure, diabetes and chronic renal failure) it was unlikely that long-term intervention would be successful and so it was concluded that she was unlikely to survive repeated infections even with intensive care. P’s frailty and dependency meant that even if she were to survive for a longer period of time, she would ultimately die of pneumonia or an alternative infection.
Mr Justice Keehan made reference to a number of cases within his judgement including NHS Trust & Ors v Y  UKSC 46 where Lady Black held that “the fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patient's best interests”.
Mr Justice Keehan also referenced the Mental Capacity Act and noted that, pursuant to s.4(2), best interests are not confined to best medical interests and that the person making the determination must consider all of the relevant circumstances.
“When considering what is in HB's interests, I take account of the fact that the balance of medical evidence would support the view that the treatment set out in the second part of the treatment plan would bring about no significant improvement in [P's] underlying condition and, to that end, they might be seen as futile. ... Against that, I have to balance the very clear wishes, expressed by [P] to her daughter, that she would want all steps taken to preserve her life ... Where it is not clear whether [P] will make an improvement in her neurological condition, it is, in my judgment, contrary to her best interests and premature to rule out the treatments set out in Part 2 of the updated treatment plan”.
Although Mr Justice Keehan accepted submissions that it would not be in P’s best interests to spend the potential last moments of her life undergoing the violent and invasive procedures which accompany CPR, he noted that P’s feelings were key to the decision and that administering CPR, and giving P a very small chance of life is what P would wish.
“It remains in her best interests for that treatment to be provided to her. I entirely accept that there will undoubtedly come a time when such treatments would no longer be in her best interests but I am entirely satisfied that that stage has not been reached yet."