By Rhiannon Snaith, 30 November 2023
Having read a blog post about a previous hearing in this case (‘Best interests, hospital transfer and a feeding tube: How open justice fails without access to court documents’), I was expecting it to be about whether or not it was in P’s best interests to have a feeding tube (re)inserted. As it turned out, that wasn’t addressed.
This case (COP 14173602) was heard, remotely, before Mr Justice Keehan on Thursday 30th November 2023.
In the introduction by Mr Fullwood, we were told that P is a man in his eighties from Iraq who had previously worked as a doctor. A few months ago, P suffered a fall and was admitted to hospital. We were told that there was some evidence of cognitive difficulties, and the hospital caring for P had also recorded that he has suffered with delirium. P has in the past also received an enforced NJ tube (nasojejunal tube), which is used for feeding and had had mittens (which stop a patient pulling out tubes) and had required 1-to-1 supervision with feeding. He could also become “agitated, unsettled and resistant to interventions”. However, he now does not have a ‘feeding tube’ and is currently being supported to make his own decisions to feed himself. Mr Fullwood said that P requires “constant supervisions on a one-to-one basis”.
Mr Fullwood also noted that concerns have been reported relating to the behaviour of P’s family members and their alleged interference with his care. He also stated that P had raised an allegation that he had been abused whilst in hospital. Mr Fullwood told the court that the hospital had imposed restrictions on the family’s contact with P: it’s limited to two hours a day. Mr Fullwood said that the position on the ward (where P is currently being treated) is that the relationship with P’s family has deteriorated. The family has approached a different hospital to take over P’s care. In doing this, the family circumvented the normal procedures which demonstrates the “breakdown” in the relationship between the hospital and P’s family.
In the matter before the court earlier in November, the Trust were asked to make enquiries as to whether the alternative hospital would accept P. Mr Fullwood stated that the hospital said if the current hospital decides to transfer P, then they would be happy to accept the transfer and care for him. Mr Fullwood told the court that, having initially expressed reservations about the transfer, the hospital at which P is currently being treated has now changed its position, and that the Health Board will now support a transfer. He said that as this was a last-minute decision (they had come out of a meeting that morning) the family had not yet been informed.
Mr Fullwood again spoke of the relationship between P’s family and the treating team which he said, “has now irretrievably broken down”. He said that the hospital will continue to provide care for P until he is transferred, and that they have been told that safeguarding will continue after the transfer. The hospital is concerned about how long a transfer will take, but noted that it could potentially take place next week. Mr Fullwood added that they cannot say what the contact arrangements will be at the other hospital, but that they will have to consider safeguarding and P’s background and come to their own decisions. As a result of this development, Mr Fullwood stated that there is no “best interest contest” for Mr Justice Keehan to consider. He ended by saying that P has developed a number of close relationships with the treating staff, and the impact this case has had on the “doctors and nurses is so profound”.
The judge thanked Mr Fullwood and then spoke to Jack Anderson, Counsel representing P, and asked whether he needed time to consider the matter in light of these developments.
Mr Anderson responded by saying that they had been informed shortly before the hearing, so had already considered the matter, saying that “There is no option to continue the current placemen. There is no best interests decision to take… and unfortunate situation but it’s the situation we are in”.
The judge addressed Mr Fullwood, stating “I had formed the view that the best course, given where we are… was that it was ultimately in [P’s] best interest to move. So, I am very grateful to you and your clinicians for the decision that has been made this morning”.
P’s daughter spoke next, she said it was “with a heavy heart” that they have had to reach this conclusion, adding that “now is the time to be focused on my father and his welfare”.
The judge responded saying “my view is what he [P] would consider most important is to have his family close”, further stating that whatever medical treatment is deemed important “it will not replace the comfort he will gain from having his loved ones around him”.
The judge also noted “there is no decision for me to make on future treatment” – presumably a reference to the feeding tube – because “that will be a matter for the clinicians in [the hospital] when he is transferred”. He added that he is sure they will consider matters in close consultation with the family.
P’s wife spoke next. She agreed with the decision that had been made to move P to another hospital, saying “I am grateful”. A close family friend of P echoed this sentiment, saying “I would like to add my gratitude” to both the judge and those that had made the decision to allow a transfer for P. She said, “I am confident that [P] is at the centre of this decision and I am grateful that he will have the support of his family”.
Talking about the framing of the order, Mr Fullwood proposed that the order includes a recital of the Judge’s indication which would help ensure that the transfer of P to a new hospital goes as smoothly as possible, which was something the hospital is keen to ensure. He told the judge that a short order will be sent to him today.
The judge concluded the hearing by saying “I am very grateful to everybody” adding “it’s unfortunate we’ve reached the need for legal proceedings, but I am comforted that the right decision will be made for [P]”.
Reflection
This case was particularly interesting to me in relation both to transparency, and in relation to the substantive matter of the hearing.
Transparency Matters
First, although I sent a request for the link on the morning of the hearing, I did not receive a response until after the hearing had concluded. Fortunately, Jenny Kitzinger (who was also observing and had already received the link) was able to share her link after requesting permission from the court to do so. There may have been others hoping to observe who weren’t able to benefit from Jenny’s help. Without it, I would have missed the hearing.
Second, I emailed both Adam Fullwood, Counsel for the Trust, and Jack Anderson, Counsel representing P, before the hearing began, asking for their position statements but have not received either. (Nor have I received a Transparency Order.)
Third, and much more positively, I was very pleased that the hearing opened with an introductory summary by Adam Fullwood, Counsel for the Trust, “as the former Vice President encouraged. After reading the blog by Amy and Celia (‘Best interests, hospital transfer and a feeding tube: How open justice fails without access to court documents’) I was aware that an introduction to the case had not been provided at the previous hearing in this case. As an observer, I am always grateful when an introductory summary is provided as it helps me to follow the hearing. Beyond this, it contributes to the development of transparency in the Court of Protection.
Mr Fullwood’s reference to the former Vice President’s encouragement of a summary is a reference to this letter which says that “striving to achieve a transparent process in the Court of Protection, whilst sitting “remotely”, remains an important objective”. As a result, he wrote:
“I should like to make a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing. Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context.”
An introductory summary provides necessary context about the case, helping observers understand the issues at hand. It helps observers to understand the legal proceedings, the parties involved and the main elements of discussion, as well as giving background to P themselves. Furthermore, it contributes to the development of transparency by ensuring that observers who may not have had prior knowledge of the case can follow the hearing effectively, helping to facilitate an informed observation. As a PhD student studying media representations of end-of-life decisions, having this context and information greatly helps me follow the hearing and discussions, and it helps enhance my ability to analyse and contextualise these cases within the broader scope of my research.
The substantive Order
As it turned out, there was no best interest decision for the judge to consider in this hearing, but it seemed to me that despite the hospital’s decision to support the transfer of P to another hospital being presented as a happy conclusion, there were some underlying hesitations and concerns. Issues relating to the safeguarding of P, the behaviour of the family as well as comments made as to how P had formed close relationships with members of his treating team were present throughout the hearing.
These issues and concerns highlighted some of the complexities in this case that were somewhat overshadowed by the ultimate, and unanimous, decision to move P to a different hospital. However, it did seem interesting to me that the judge stated that, given the circumstances, even before the Trust changing its mind, he was already of the view that moving P would have been the best decision. Despite the concerns raised about the family, the judge seemed sure that “what he [P] would consider most important is to have his family close”.
As was noted in the previous blog, “bubbling just under the surface of this hearing – and absolutely fundamental to the case as a whole – is the question of whether or not P should receive clinically assisted nutrition and hydration”.
All in all, I was left with a feeling of slight unease after this hearing. These persistent undercurrents suggest, at least to me, that perhaps there are some unresolved issues in this case despite the seemingly unanimous resolution.
Rhiannon Snaith is an ESRC funded PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on media representations of decisions about life-sustaining treatment, specifically for those without the capacity to make such decisions for themselves. She has written several blogs for the Project. You can learn more about her work by checking out her academic profile and her Twitter profile.
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