Hemachandran v Sudiksha Thirumalesh (deceased) and University Hospitals Birmingham NHSFT [2024]EWCA 896 is a landmark judgment given by King LJ with whom LJJ Singh and Baker agree. The successful appeal against the first instance decision that Sudiksha lacked capacity to make decisions about her medical treatment, including palliative care, was brought by her parents. That was because, tragically, Sudiksha died 35 days after the first instance decision of the late, greatly missed Mrs Justice Roberts who is praised, and not at all criticised, by the Court of Appeal. It seems likely that the case will become known as Re Sudiksha or Re Thirumalesh. (In a previous judgment ([2023] EWCOP 43), Peel J authorised publication of Sudiksha’s name).

The adjective “landmark” is justified for two reasons. First, the judgment clarifies the so-called ‘functional’ aspect of the statutory test used to determine whether a person over 16 years has the mental capacity to make a decision. Although the clarification is provided in the context of a decision about medical treatment, the ratio applies to the test for mental capacity in relation to all decisions.

Second, the judgment overturns what King LJ referred to as “an established legal approach to the relevance of a patient’s belief in their illness and prognosis”, which approach she finds to be “wrong and contrary to Court of Appeal authority” (para 10).

GUP v EUP and UCLH NHS Foundation Trust [2024] EWCOP (25 January 2024) 

Cases involving the withdrawal or withholding of life sustaining treatment can be heartrending for all involved, whatever their role.  Such cases will always be uniquely and exceptionally deeply harrowing for P’s family and loved ones.

For any person to become embroiled in conflict with professionals as your loved one is dying must add an unimaginable additional burden to one’s grief.  That burden will be far heavier when that family member is also required to issue court proceedings in order to bring the case before a CoP judge, particularly if having to do so without the benefit of professional advice.  For an inexperienced lay person filing in the necessary COP1 and COP3  and COP24 forms and navigating the procedural labyrinth of making an emergency CoP application, in order to get their case before a judge to be heard, is an enormous challenge.

In this latest serious medical treatment end of life case the Official Solicitor deprecated the family having been left to bring the case to court themselves, after the Trust had initially indicated it would do so but subsequently concluded it was not necessary. The Official Solicitor made an entreaty that all health providers involved in a dispute regarding potentially life prolonging treatment abide by the CoP Practice Guidance [2020] EWCOP 2 and promptly bring the application themselves, rather than leaving unrepresented, inexperienced and often distressed family members (who will frequently not be eligible for public funding) to make their own application.

 Norfolk & Norwich Univ. Hospital NHSF Trust and others v Tooke and others [2023] EWCOP 45

‘Mum wins court fight to save son’  –  ‘Norwich mum wins dialysis battle’ – ‘Family joy as Jordan wins ‘life or death’ battle’  – ‘Trust in legal battle over care can be named’

Sub-editors’ headlines are what sells newspapers, but it is such a shame that in the race to grab the reader’s attention with warlike language about fights and battles, the really important point in this case has been totally lost.

Jordan Tooke is 29 and has a diagnosis of autism, severe learning disabilities, and William’s syndrome.   Related to his disabilities he has developed a long-standing phobia of hospitals in general and needles in particular – which is obviously problematic given he also has chronic kidney disease and recently entered end-stage renal failure.

What the headlines have overlooked is that nobody, not even his parents, thought that Jordan would be able to tolerate the considerable restrictions involved in receiving the life-preserving haemodialysis treatment he would need – for three to four hours, three times a week – when  his kidneys failed.  So when his mother started court proceedings, it was on the express basis that he was not a candidate for dialysis. A kidney transplant was thought to be his only hope of life: that was what the proceedings were all about.

However, doctors at the separate hospital where any transplant operation would be provided were clear that being able to undergo haemodialysis was a pre-condition for any patient having a kidney transplant. An independent expert instructed by Jordan’s parents agreed that haemodialysis was not an option.

That might well have been the end of it.  However, at a hearing in April, the dialysis team, the transplant team, the Learning Disability team, Jordan’s parents and the legal teams worked together to craft a way forward.

The full episode, hosted by Christopher Johnston KC featuring Tom O’Connor is available here.

In this episode, Christopher Johnston KC is joined by Tom O’Connor, Clerking Team Leader at Serjeants’ Inn Chambers. Whilst Tom is not an author of Medical Treatment: Decisions and the Law, he plays a key part in the work mentioned in its chapters.

Together they discuss the journey of a Court of Protection case, with a particular focus on urgent/out-of-hours matters, and what led Tom to his interest in the Court of Protection. The discussion offers insight into the process of making an emergency application to the court and points for counsel and clients to consider along the way.

This podcast is also available on Spotify and Apple Podcast.

Cambridge University Hospitals NHS Foundation Trust v RD [2022] EWCOP 47 (17.10.22)

There is no new law in this tragic case – but what does stand out is the judicial approach that puts the person’s autonomy at the heart of the decision, even where the exercise of that autonomy would, almost certainly, lead to the person’s death.

It must be a very rare case where an adult who at times does not have capacity to accept or refuse life-saving treatment, and who has expressed a will to live, is allowed to pursue a course that will lead to their death, but that was the outcome here.

The background

Ms D’s story is a tragic one.  At only 26 years old, she already had a long history of mental health difficulties, and had spent significant periods of her life in psychiatric units since the age of 15. The impact of her adverse earlier experiences upon her mental health had been profound and long lasting.  She had been diagnosed with Emotionally Unstable Personality Disorder and Post Traumatic Stress Disorder (‘PTSD’), and at some points exhibited psychosis.  Her complex diagnosis was accompanied by a long history of extremely serious life threatening self-harm; she inflicted significant injuries to her neck, requiring numerous admissions to an Intensive Care Unit. She had undergone a tracheal reconstruction in February 2022 but subsequently cut her own throat again in June 2022, requiring emergency surgery and leaving her with a tracheostomy in situ.

When in hospital, she would interfere with her tracheostomy tube if her sedation was either withdrawn or reduced.  She could only be prevented from interfering with the wound by using chemical or physical restraint. Eventually, with the support of the psychiatric team, sedation was lifted and the tracheostomy tube was removed in early July 2022 so that she could be discharged to a supported housing placement for people with mental health difficulties. Sadly, this community placement did not last long.  By the end of the same month Ms D was back in hospital, with such a severe self-inflicted further neck injury that she now faced life with a permanent tracheostomy and was unlikely to be able to talk again.