The case involves a man, referred to in the judgment only as XR, who, in 2017, suffered a heart attack in the street and who was resuscitated after his brain had been starved of oxygen for 40 - 60 minutes rendering him in a persistent vegetative state.

This month, the Court heard an application to withdraw his feeding tube, with the result that he would die of dehydration in seven to ten days. This article is not about the barbaric treatment in such circumstances (having sat holding my father's hand for a week after he became comatose with a Do Not Resuscitate instruction and thinking how much better it would be if it were permitted to give him a dose of a suitable sleep-to-death conversion drug such as lorazepam, this is not a topic I wish to be reminded of) but rather about the failure to design and act upon risk and compliance policies that take account of entirely foreseeable events.

XR was transferred to a specialist neuro hospital where he was put into intensive care and remained year after year, with no prospect of recovery. He received various treatments for physiological conditions that developed. A review of his condition in 2018 reported some responses to stimuli and recorded some indications of possible awareness but many subsequent reviews found no support for any of those indications. It is determined that his condition is deteriorating and is not recoverable.

XR is able to breathe independently but has no reliable means of communication and has no awareness of himself or his surroundings. He receives CANH and medications through a PEG tube. He has severe physical impairments with no functional use of his lower or upper limbs, severe truncal weakness, global spasticity and frequent extensor spasms. He is also doubly incontinent and is dependent on two carers for all his personal care

All of that seems to be as we might expect. It's what happened next that demonstrates a failure to identify risks and to put policies in place to deal with them.

The medical team said "we do not feel confident in making a long term decisions and would appreciate some clarity from the Court of Protection as this is an unusual case"

Perhaps the word "confident" should be read as "comfortable".

Professor Wade, Consultant in Neurological Rehabilitation visited XR in April 2024 and in his detailed report he
reviewed the history, analysed the factors to consider and summarised his conclusions as follows: ‘After considering his situation (he is unaware and likely [in para 6.36 of his report he refers to this as a ‘significant chance’] to be experiencing at least some pain and distress), his prognosis (no improvement and probably decline), and what was important to him from my own deductions using the evidence available, I concluded it was no longer in his best interests to continue gastrostomy feeding and hydration…I concluded that this was not a finely balanced decision. The circumstances are challenging, but the decision is relatively straightforward…’

The judge said "In Professor Wade’s view it was the circumstances surrounding the decision that made it challenging, but not so after proper analysis."

At paragraph 88 of the judgment, it says "XR remained drifting in a vacuum of ineffective best interest
decision making for a number of years. "

So what , exactly, went wrong for so long?

Without seeking to look behind clinical or ethical factors. the core failure was that the Hospital had a policy to continue testing and treating but not to make, for want of a better term, a final determination.

The result was that "we don't know" became the status quo and there was nothing in place to overcome that inertia. Worse, the testing and treatment appears to have reinforced that inertia. There was no policy for "best interest decisions" to be made after reviews.

The Judge recognised that it may be that cases end up in Court for the making of the final decision but made it plain that policies and procedures must be in place and must be followed. This is not, he strongly indicated, an unforseeable situation. His final paragraph sends a chilling message to all risk and compliance officers and regulators. Compliance is not the be-all and end all. If you comply but fail to identify and protect against risk, it's not good enough. And it's not good enough to wait until a foreseeable risk manifests itself before producing those policies

The wholly unacceptable delays in GU, AB and now this case send out a blunt but clear message that such delays in effective best interest decision making are unacceptable and wholly contrary to the patient’s best interests which there is a clear statutory obligation on the responsible care providers to protect.