Paul Briggs

Counsel for the different parties were:

• Victoria Butler-Cole (instructed by Irwin Mitchell LLP) for Lindsey Briggs
• Vikram Sachdeva (instructed by the Official Solicitor as Mr Briggs’ litigation friend)
• Conrad Hallin (instructed by Hill Dickinson LLP) for the Walton Centre and the WCCG

Victoria Butler-Cole KC

Conrad Hallin

Vikram Sachdeva KC

Paul’s mother understands that it’s highly unlikely that Paul will gain capacity to make decisions about his own medical treatment & that he will remain totally dependent.

She says: ‘then he’d not want to be here’.

Brother (no 1): Paul wouldn’t want to suffer a long wait for a very unrealistic hope that he might one day be able to express his views.

Brother (no 2): Second brother sworn in. He says his earlier view of Paul’s best interests [to continue treatment] was based on a decent chance of a good outcome. He no longer believes that that’s possible.

Paul’s colleague says Paul was a proud & independent person. He wouldn’t have wanted to be dependent for personal care.

Counsel for Paul’s wife summed up the evidence, highlighting that Paul Briggs’ values were independence, dignity, active involvement in his life, and with his daughter and that Paul would have wanted the ability to communicate with his family and be involved in bringing up his daughter.

Mr Briggs moved his big toe, and pressed on a switch, when asked, but some ‘Yes/No’ questions were not very successful.

Paul responded ‘Yes’, to question, ‘Are you in pain?’ but the answers to these questions are not reliable.

Speech and Language therapist is questioned about level of her skills and experience and evidence (or not) of progress in Mr Briggs’ responsiveness over time.

Independent expert believes Paul should have six months optimised rehabilitation in order to see if he can demonstrate improvement. (Optimised rehab could include addressing positioning, medication etc).

If given the opportunity of specialist rehabilitation Paul Briggs might still recover sufficiently to make simple choices. He might regain capacity to choose breakfast options, although unlikely to regain capacity to choose clothing appropriately. 

Independent expect comments: Degree of brain injury means patient can lack insight into limitations. So, managed in an appropriate setting they are usually happy.

Consultant in rehabiliation confirms her patient is minimally conscious. She adds that Paul is not in an ideal environment for demonstrating his level of consciousness (e.g. because of noisy distractions in his current environment etc).

Asked if Paul can experience pain, she replies, yes, she thinks so. But Paul is unable to make his own needs known. Assessment of pain is just by observation.

At times, Paul has spasms.  Team are working on infection, bowel management, seating and drugs to make him more settled. Stretching and splinting for contractures might cause discomfort, but treatment choices balance benefits and harms in ‘medical’ best interests.

The Mental Capacity Act 2005 specifies that efforts should be made to consult ‘anyone engaged in caring for a person or interested in his welfare’ Section4(7). This is not limited to ‘next-of-kin’. It was clear in this case that there was strong evidence about Paul Briggs’ wishes, feelings, values and beliefs that could have been gathered from a wide range of people who knew him.

In addition to commenting on the treating doctor the Judge asked the Trust’s barrister to consider how his client, the Trust, had treated evidence from the family about Paul Briggs’ views. During the court hearing he also expressed his appreciation of the family’s contribution and  commended the ‘dignity, courage, and transparent honesty’ with which family testified about Paul Briggs’ wishes.

This question was raised by counsel for Paul’s wife.  The treating doctor was asked about training in the Mental Capacity Act 2005  because some of the doctor’s statements did not seem consistent with having acted in accordance with the Act.

The treating doctor’s answer was ‘No’, she had not had formal training on the Act.

The judge queries the use of the term ‘medical best interests’ because best interests decisions, by definition, involve a holistic assessment which goes well beyond medical information and includes consideration of the person’s past and present wishes. See Section4(6) Mental Capacity Act 2005.

Questioned about her own ethical position the treating doctor says it is always unethical to withdraw a feeding tube from any minimally conscious patient in Paul’s situation, simply because we know improvement can occur.

This questioning, and the response from the doctor, suggests that this doctor may have found it hard to carry out a ‘proper’ best interests assessment for Paul Briggs as an individual, taking into account what he would have wanted in this situation.  Instead she was taking a generalised position based on her own ethical beliefs about minimally conscious patients in general (and Paul Briggs was only 16 months post injury, and further recovery was possible). It may be that she should have declared a conscientious objection and passed the decision over to someone else.

Detailed guidelines about when and how to do this are outlined in Royal College of Physicians’ PDoC guidelines in section 4.8.5. This spells out that  “Any practitioner is entitled to hold a moral viewpoint, but they are not entitled to impose that view on others” and explains what practitioners can do if they feel unable to make best interests decisions (https://www.rcplondon.ac.uk/guidelines-policy/prolonged-disorders-consciousness-following-sudden-onset-brain-injury-national-clinical-guidelines)

In the published judgment the judge said that he thought her ethical approach was understandable and commendable, but pointed out that it was not an approach that Mr Briggs himself would have taken.

I’m aware people have different views of “quality of life”, but I observe in my patients that they are happy to be alive.

Independent expert says: Depression after severe brain injury is rare. Patient has limited insight into restrictions on their life due to their injury. If Paul Briggs emerges from the minimally conscious state, it is doubtful that he’ll recover sufficiently to have insight into his previous wishes.

They [brain injured people] can be a “new person”. Some people say, “I wouldn’t want to be like that” but are content, or even happy, when they are like that.

Barrister says: There is uncontested evidence that Paul is now ‘a different person’ and that this means the relevance of his past values and wishes is unclear. Mr Briggs could become happy.

Official Solicitor’s position is that Mr Briggs should have another six months of treatment, and assessment and then, revisit his best interests. [Judge says: We already have the evidence of the best possible recovery scenario.] Barrister responds: But six months rehab would give a much better sense of the balance of pain and pleasure.

Barrister asks: Who is the patient? Mr Briggs before the accident or Mr Briggs, as he is now? Questions whether we can really know what Mr Briggs would want in his current situation [Judge comments: Patient’s beliefs and values indicate he would find life like this intolerable futile and painful to everyone – himself and his family.] Barrister’s response: But Paul Briggs didn’t appreciate when he had capacity that he’d be a different person, and could have pleasure, and would not be in torment.

We knew of people who were happy and lacked insight into their condition. That was not what he wanted for himself, even if he was happy.

Counsel for wife summarises academic debates about ‘critical interests’ (what people understand as essential to a good life or key to their life story) and ‘experiential interests’ (what may give pleasure or pain). [Note: there is a large literature on this if you want to know more].

 Paul Briggs doesn’t currently have any wishes, values and beliefs, only pockets of consciousness [Note: so clinicians can’t weigh current wishes against past wishes as they might for other types of patients e.g. people with dementia].

Counsel for Paul’s wife points out that his wife and brothers visit Paul Briggs because, for them, he is the same person. Paul Briggs is still at the centre of connected relationships.

Obviously Paul Briggs is different from the way he was before, but that doesn’t take us any further forward in deciding what is ethically or legally right.