By Hita Jadeja, 7th March 2024
I am a solicitor with a background in commercial dispute resolution and inhouse advisory work. I have developed a strong interest in the field of health and social care law, mental capacity and mental health law.
My background in litigation is useful, but health and social care law, mental capacity and mental health law is very different to commercial law. My interest in these areas, which includes Court of Protection, was piqued due to my experiences, both professional and personal. Through personal reflection, I have realised that my deeper satisfaction comes from being involved in work that makes a difference to the more vulnerable in society, either through empowerment or securing their rights.
Many years ago, one of my roles involved supporting people with mental health issues to access social care support or treatment. I also had a family member who suffered a stroke and as a result lost capacity. This led to a direct and active involvement in the area – which has its own legal framework and is also a complex mix of public law principles, human rights, policy, medical law and ethics which makes the field both interesting and challenging.
Observing in the Court of Protection
I noticed a serious medical treatment case (COP 14199484 before Mr Justice Hayden) listed on the Open Justice Court of Protection (CoP) Project website on 25 January 2024.
The website said that the case concerned a lady in her eighties who had had several strokes. The Trust had said that clinically assisted nutrition was not an available option (but were continuing to provide hydration). Her son (a litigant in person) had brought the case as he does not want his mother starved to death. The case had not been listed elsewhere on that day but we could email Open Justice CoP Project for access. It was the third and final day of an ‘urgent’ hearing and the judge delivered an extempore (oral) judgment.
Previously, in December 2023 I had requested to observe a serious medical treatment case, however I was not able to for reasons I do not know. (I received an email from a listing officer in the Royal Courts of Justice stating that my request had been sent, followed that up, but did not get a response). So, when I read that the Open Justice CoP project had permission from the judge to share a video link to this hearing, I quickly took the opportunity to request it, and received it (from Celia Kitzinger) in good time.
The hearing was hybrid (i.e. conducted in person and via MS Teams). I did not receive a transparency order (TO) however after the hearing, I received an email from the barrister representing the Trust, David Lawson informing observers that there was a TO in place and explaining the reporting restrictions. I did take the opportunity to request the TO and position statement but have not received either of these. I did not get the name of the barrister representing P (via the Official Solicitor) and as such have not requested their position statement, although I’ve subsequently been told by the Open Justice CoP Project team that this barrister was Bridget Dolan KC.
Joining the video-platform, I noticed about 14 people attending remotely (these were probably a mixture of public observers and people involved in or connected to the case). The lady at the centre of the case is referred to as EUP in the judgment, so that’s how I’ll refer to her here. Mr Justice Hayden started the hearing by asking both counsel if they wished to add to their submissions. He also addressed the son to say “I don’t think anyone could have advanced the contrary arguments to those proposed by the Trust any better than you did. Your mother would be proud of you.” He then delivered his judgment.
Summary of the Judgment
Note: The judgment has since been published here: GUP v EUP & Anor [2024] EWCOP 3
EUP’s background was summarised prior to her suffering a stroke and her current long stay in hospital. As an observer attending the last day of the hearing, this personal background helped in getting a sense of EUP.
Briefly, we learnt that EUP is a lady in her late 80s, who settled in the UK from India with her late husband, and is a mother to 5 children. She has been the primary carer for both her son (who suffers from mental health problems) and her late husband to varying degrees. Her late husband developed dementia and she cared for him for as long as she could, even in the later stages when he lost the ability to swallow. She was very hopeful for a grandchild and was delighted to have a grandson from her daughter in her mid-eighties. P was happily living with her elder son and daughter; she had mobility issues but remained cognitively strong and enjoyed gardening and cooking.
In October 2023, EUP was admitted to hospital following a stroke. During her stay in hospital, she suffered mini strokes and as a result has dysphagia, aphasia, weakness in both arms and legs, and complete weakness in the right arm. She underwent a stenting procedure of the internal carotid artery and while on ICU was intubated on a ventilator, and received medication and clinically assisted nutrition and hydration via a nasogastric tube (NGT). Unfortunately, she had also suffered further strokes. She was discharged to the stroke ward with the NGT in place. This was removed on 15 December as the tube had bent in the stomach. There were several failed attempts made (for around a week) to secure the NGT with a final attempt made again on 3 January 2024, but the tube stayed in position for only 24 hours. Hydration continued via an IV line.
Hayden J then summarised the medical evidence that had been submitted in writing and orally in court. In short this was: that there was a lack of change in neurological condition as EUP has suffered irrecoverable brain damage; the NGT could not be inserted reliably and repeated insertion was causing EUP distress; that there are no options for tube insertion in the stomach (a gastrostomy) because of extreme risks with insertion, risk of skin breakdown at the site, distress incurred during insertion and post insertion monitoring. These risks extend similarly to the provision of other methods of clinically assisted nutrition (PEG, RIG, total parenteral nutrition) and the assisted hydration was causing oedema.
Any signs of consciousness from EUP were contested, infrequent and not meaningful in terms of recovery. EUP’s daughter and son and a number of their friends had seen eye movements which were not observable before. Whilst Hayden J, accepted that the son had questioned himself properly as to whether these changes were significant in terms of signs of recovery, by asking his friends to note any changes as a means of further confirmation, he was only prepared to accept the son’s view to the extent that EUP opening her eyes must be infrequent otherwise the nurses would have noticed it.
EUP’s son had said in court that if EUP’s current condition is all that can be achieved, she would not wish to live this way, but he wanted treatment for some weeks or months longer to see how much she could recover. EUP’s daughter – who I have been informed by Celia Kitzinger, gave evidence in court the day before via telephone which Hayden J put on loudspeaker so everyone in court could hear it – would also wish for the CAHN to continue at least for a short time, to allow a chance of recovery.
Mr Justice Hayden made a declaration that delivering clinically assisted hydration and nutrition, delivering antibiotics, and CPR in the event of cardiac arrest were not in EUP’s best interests. Any such treatment currently being provided may be lawfully stopped. It was in EUP’s best interests for palliative and end of life care to be provided.
I observed towards the end of the hearing, after the judgment had been delivered, when matters pertaining to the transparency order were being discussed, My Justice Hayden, looked at P’s son and said:
“I cannot imagine how difficult this week has been for you, unbearable, and disappointed with my conclusion but I hope you will appreciate that I have listened to every piece of evidence and consider it to be the right decision for your mother.”
It was done rather spontaneously, and for me it showed real consideration for the son’s feelings.
Reflections
I’ve divided my reflections into three sections. First, I reflect on the difference between the adversarial court proceedings with which I’m more familiar, and the “inquisitorial” nature of the Court of Protection. Second, I consider the procedural point made by Hayden J as to who should properly have brought the application in this case. Thirdly, I have subsequently considered legal commentary about this procedural point, and summarise it in my final section. It’s all been quite an education!
1. Adversarial v Inquisitorial Court
I was surprised that the son had pursued and continued with the application despite not having legal representation, which I thought commendable given the complexity and his situation. I have not experienced this in high court commercial litigation, and it may to some extent reflect the difference between an adversarial and an inquisitorial approach in the court.
As I have learnt that Mr Justice Hayden asked the Trust to call evidence on the entirety of the care provided to EUP, and not just the nutrition, so in essence he decided what to investigate and how to do so. I believe in this case it did add a layer of protection for EUP in ensuring her best interests. For instance, he identified that delivering hydration was not in her best interests: rather it had been done, and was continuing, he said, as a compromise between the medical team and the family members’ wishes. In an adversarial court, lawyers are generally in control of the information presented under the civil procedure rules (CPR), as judges will not enquire beyond the identified issues, facts and evidence presented in court. Although under the same rules, judges do have case management powers to give directions on matters such as (but not limited to) setting deadlines and managing the parties’ costs to ensure cases are dealt with justly and at a propionate cost.
2. Legal Procedure
I gained knowledge and perspective beyond the case. It turned out to have a procedural point where there was some confusion as to who should have made the application. Hayden J, took the opportunity when delivering his judgment to confirm his previous guidance given in 2020 – which is that the burden of making an application is upon the healthcare provider to seek endorsement of their treatment plan, when there is a best interests conflict relating to the provision of life sustaining treatment between the doctors and family members.
8. If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:
(a) finely balanced, or
(b) there is a difference of medical opinion, or
(c) a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or
(d) there is a potential conflict of interest on the part of those involved in the decision-making process
(not an exhaustive list)
Then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.
9. Where any of the matters at paragraph 8 arise and the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must be made. This is to be regarded as an inalienable facet of the individual’s rights guaranteed by the European Convention on Human Rights (‘ECHR’). For the avoidance of any doubt, this specifically includes the withdrawal or withholding of clinically assisted nutrition and hydration.
Serious Medical Treatment, Guidance [2020] EWCOP 2 (17 January 2020) (bailii.org)
Mr Justice Hayden pointed out that what he saw as the misconceived legal position in this case, left P’s son with no alternative but to pursue the application himself and to navigate the Court of Protection without experience or legal representation, causing great stress.
3. Jurisdiction of the Court of Protection – A contested opinion
Mr Justice Hayden’s opinion that the Trust should properly have brought this case to the Court of Protection is contested.
I am grateful to Celia Kitzinger who kindly sent me links to two blogs and a webinar in respect of this guidance. These are:
- “Don’t ignore the Vice President’s Practice Guidance when a decision relates to the provision of life-sustaining treatment” by Sophia Roper KC (on the UK Medical Decision Law blog, 30th January 2024)
- “Don’t ignore the Serious Medical Treatment Guidance – but let’s be clear about what the law requires”by Alex Ruck Keene KC and Tor Butler-Cole KC (on the Mental Capacity Law and Policy blog, 4thFebruary 2024)
- The webinar (held on 27 February 2024 from 39 Essex Chambers) has the title: “When is a court application required to withdraw medical treatment? Implications of Re GUP”. It was chaired by Vikram Sachdeva KC, with presentations from members Arianna Kelly, Katie Scott and Professor Stephen Playfor, NHS. It was recorded – and can be accessed, along with the PowerPoint slides by clicking on the title of the seminar above. I have focused here on Katherine Scott’s analysis on the application of the guidance in this case.
The two blogs take competing views on the guidance issued by Mr Justice Hayden. One accepts Hayden J’s position that the guidance should have been followed in Re GUP. But the other (the joint blog) indicates where the powers of the CoP are limited – in particular, where a treatment option is not on the table. The authors suggest that, if the Trust were to make an application in the sort of situation that applied in Re GUP, then the Kings Bench Division (under Part 8 of the CPR) would be the appropriate forum (rather than the Court of Protection) to seek a declaration of lawfulness that a course of treatment is not appropriate. This is on the basis that the CoP decides whether a treatment option that is available, or on the table, is in the best interests of the patient. In this case, clinically assisted nutrition was not available, or offered – so there was no ‘best interests’ decision to make.
In the webinar, Katherine Scott takes the view that the guidance should not have been relied upon on this case. This is because the guidance refers to disputes about best interest decisions and not to disputes about clinical appropriateness. Her analysis is that, the stage of clinical decision making involving what treatment options are clinically appropriate (i.e. does the option provide overall clinical benefit) for the patient, and only offering those that are, is a public law decision, and therefore reviewable by way of judicial review, in the Administrative Court. When more than one appropriate treatment option has been identified, and patients can choose between the treatment options – and in the case of a patient without capacity, decide which options are in their best interests. It is at this stage, that the CoP has jurisdiction, and can consent or refuse on behalf of the patient. Therefore, in her view, there is no obligation on a Trust to bring a case before the CoP for a best interests evaluation when there is only one clinically appropriate treatment option indicated, because there are no available options for the court to choose between.
Furthermore, Katherine Scott states that the approach in this case appears in direct contradiction to that taken by the Court of Appeal in AVS v A NHS Foundation Trust & Anor [2011] EWCA Civ 7 and the Supreme Court in N v A CCG [2017] UKSC 22. Arianna Kelly, in the webinar provides more information about these cases and other relevant case law. Very briefly, in N v A CCG, the supreme court held that the CoP does not have quasi-judicial review powers and is limited to making decisions that P could have made for themselves if they had capacity. In AVS v A NHS the Court of Appeal made clear that the Court of Protection does not decide on hypothetical questions, and doctors cannot be forced to give treatment.
Hita Jadeja is a solicitor with a background in commercial dispute resolution and inhouse advisory work.
Promoting Open Justice in the Court of Protection 