By Hita Jadeja, 14th August 2024
On 31 July 2024 I observed a hearing (COP 20000664) before Mrs Justice Theis sitting at the Royal Courts of Justice.
An NHS Trust (‘the Trust’) has made an application concerning life-sustaining treatment for a middle-aged lady and this was a ‘directions’ hearing. Essentially directions hearings are held to prepare the case for the final hearing; for example, identifying and agreeing on what documents are required, setting a timetable of when the documents should be filed and served, fixing a final hearing date, and narrowing any issues to try to ensure an effective final hearing.
According to the transparency order: “The overall issues in this case relate to whether HF lacks capacity to conduct these proceedings and to make decisions about medical treatment, including life-sustaining medical treatment, and (if she lacks capacity) whether it is in her best interests to continue to receive life-sustaining treatment or move to a palliative care plan.”
I will first describe issues relevant to open justice and transparency (access and position statements) and then I will summarise what happened in the hearing.
Transparency Matters
Access
I had emailed my request to observe the evening before the hearing. At 8.40am I had an email from a Listing Officer (High Court Family Division) to say that my request has been forwarded to the Judge’s clerk and associate team who would be able to provide me with a hearing link, and that I should let her know if there are any problems. This was helpful as it provided some certainty both in terms knowing that my request has been read/dealt with and planning my day.
At 10.22am I replied to her email asking whether the hearing was still going ahead as I had not yet received the link. I had a prompt reply at 10.26am, apologising and informing me she has spoken to the associate team leader and if I do not receive the link in a few minutes to let her know. At 10.37am I emailed, “Apologies but I am still awaiting the link.” I appreciate that court staff are busy and I was not sure at this stage whether it was a delayed hearing (in which case of course I would not be chasing) or there was some technical problem. I got the link at 10.47am from the Court Associate and I sent an email to the Listing Officer thanking her for her help.
When I joined the link, and saw the barristers approaching the front row of the courtroom, I recognised the person who turned out to be the family’s barrister, Mr David Lawson, and also the person who turned out to be P’s barrister (instructed via her litigation friend the Official Solicitor) Ms Sophia Roper KC. I had seen them in other hearings. They were later introduced as such by the applicant Trust’s barrister, Mr Jake Rylatt, who I did not recognise. As barristers do not mention their own name in the introductions for the judge, I only worked out who he was towards the end of the hearing when I heard the judge use his name a few times and did a quick google search. The barristers in the case were all from Serjeants’ Inn chambers.
The hearing started at around 11.05am. Mrs Justice Theis confirmed that there was a transparency order in place and asked Mr Rylatt to briefly explain the reporting restrictions. She also mentioned that a copy can be requested from the court office. I made a request to the Court Associate during a short recess and received it then. The judge had also asked Mr Rylatt to provide a case summary before proceeding with the hearing.
I am grateful to Mrs Justice Theis and to the court staff for their time in facilitating open justice.
Position Statements
After explaining the TO, Mr Rylatt mentioned that there were members of the press who were media accredited reporters and have requested position statements, the judge gave permission to release these. As I’m not an accredited reporter, and not entitled to position statements in the same way, I took the opportunity during a short recess to request the PSs from Mr Lawson and Ms Roper KC (and when I later worked out who the Trust’s barrister was, I requested the same). I was not expecting any responses at this stage, since I was very aware that they were sorting out directions for the draft order in the case. After the recess, Mr Rylatt informed the judge that the lawyers were intending to further anonymise the position statements and the judge confirmed that the court office will revise the TO to reflect that. To date I have not received any PSs.
The Hearing
The lady at the centre of the case (P) suffered a cardiac arrest in early July or June 2024 (I did not catch that clearly). She has been diagnosed with severe global brain injury and is currently receiving life sustaining treatment at the Trust’s intensive care unit. Pressure sores have also been identified as a concern in the case.
The treating clinicians do not see any prospect of neurological recovery. A best interests meeting was held with P’s family to consider withdrawing the current treatment. The family disagreed with that proposal so the Trust made the application to seek a declaration on whether it is in her best interests to continue with life sustaining treatment or move to a palliative care plan. During the hearing It was agreed that P lacks capacity to conduct the proceedings, thus establishing the Court of Protection’s jurisdiction.
For the family one of the main concerns is the speed and pace with which clinical positions have been taken and whether this may have coloured views on improvement over the first month or so after injury. Ms Roper for P (via her litigation friend the Official Solicitor [OS]) stated that the Official Solicitor’s view was that it would be helpful to obtain further medical evidence from experts.
The Trust has stipulated that medical evidence will be provided by three doctors one of whom is not contracted with the Trust. In relation to obtaining expert reports, the Trust did not seek to dictate who should be instructed in terms of speciality (e.g. neurologist, neuro intensivist or a neuro rehabilitation consultant) and was happy for the OS to take a view. The distinction drawn was that a neurologist can provide a diagnosis on the condition whereas an intensivist will be more concerned with critical care and organ support.
Mr Lawson, on behalf of the family, indicated the desirability of obtaining two expert reports to include one from a neurologist who can provide an opinion on the potential of likely neurological recovery, as this underpins their case. He requested further provisions to be included in the draft order that allow for further scanning, assessments for level of pain and level of awareness, and to obtain second opinions if appropriate. There were no objections to this.
In relation to instructing the experts, Ms Roper informed the court that a neuro intensivist has been identified, but it has proved difficult to identify a neurologist of sufficient quality who is available. Although endeavours will be made to identify one, they may have to instruct a neuro rehabilitation consultant. Mrs Justice Theis indicated that potential experts should be informed that remote attendance is fine, in the hope that this will increase the pool of available neurologists.
The judge also approved a third-party disclosure order for medical records to be released to P’s son. Mrs Justice Theis asked the Trust to include in their updated position statement the burden of prolonging treatment, the pressure sores, levels of pain, and – in the event that a palliative care plan is approved – a list of discharge steps if it is found to be in P’s best interests to move out from critical care.
A timetable was agreed for when the medical evidence, expert reports, finalised position statements and other evidence the parties seek to rely on should be filed and served. Mrs Justice Theis suggested a short hearing on 14 August 2024 to take stock and to ensure continuity in terms of case management.
The parties have agreed to have a round table meeting on 2nd September 2024 – as by then both parties will have all the evidence in front of them – in preparation for a final hearing on 4th – 6th September before Mr Justice Cusworth. At the roundtable meeting, they will try and reach an agreement as to the way forward. It is hoped that there can be a resolution and the court will be notified by 3rd September if a hearing is required – or perhaps whether it is required but not the three-day hearing time estimate that has been allocated.
The judge praised the efficiency and collaborative approach of the legal team and acknowledged the difficult situation for P’s family.
Hita Jadeja is a solicitor with a background in commercial dispute resolution and inhouse advisory work who has an interest in health and social care law, Court of Protection work and mental health law.
Promoting Open Justice in the Court of Protection 