Just launched: Medical Treatment: Decisions and the Law podcast

Listen to the preview episode with the hosts here.

This podcast, hosted by Christopher Johnston QC and Sophia Roper QC, will feature different authors in each episode, looking further and discussing the various topics covered by the book.

The podcast will complement the textbook, Medical Treatment: Decisions and the Law, which is edited by Christopher and Sophia, with chapters authored by a team of 27 barristers at Serjeants’ Inn Chambers and published by Bloomsbury Professional in 2022. It places medical decision-making in its legal context and provides practical guidance on the most ethically challenging cases that face the courts. It explains how the Mental Capacity Act works in practice and how the courts and lawyers wrestle with and resolve problems relating to the very essence of life: what is life? what is an acceptable quality of life? what treatment is so burdensome that it should not be attempted? These questions are posed, not in the abstract but, in real – often desperate, often urgent – situations.

To find out more about their practices, please see our website here. To find out more about the book, please click here.

Duty of FULL disclosure when applying for a Reporting Restrictions Order

Manchester University NHS Foundation Trust v William Verden (By His Litigation Friend, The Official Solicitor) and anor. [2022] EWCOP 8 Feb 2022 (here)

Mrs Justice Arbuthnot has sent out a clear message to all parties in Court of Protection proceedings that, when applying for reporting restrictions, there is an expectation that a full account will be given to the judge of any media coverage that had already taken place.

Establishing the best interests of William Verden is an extremely challenging task from a clinical, ethical and legal standpoint.   In early March ’22 a judge of the Court of Protection (‘CoP’) will decide whether this young man with moderate to severe learning disability, autism and ADHD, whose associated behavioural disturbances make it difficult for him to tolerate invasive medical procedures, should have the opportunity to undergo a kidney transplant that has at best a 50% prospect of success.

What brought the parties into court on 8 February was the question of whether William’s anonymity should be preserved by the standard Transparency Order (perhaps better described as a Reporting Restrictions Order or ‘RRO’) that had been made by a judge, on the papers, when this serious medical treatment case was issued.

Procedurally unfair for a judge to visit P and not share the outcome with the parties say Court of Appeal

Re AH [2021] EWCA  1768, 25.11.2021

Introduction

  1. The four adult children of AH appealed the order made on 3 September 2021 by Hayden J sitting in the Court of Protection[1], in which he declared that it was not in AH’s best interests for her to continue to receive life-sustaining treatment, namely, ventilatory treatment after 31 October 2021.
  2. The order was not to take effect until that date to enable AH’s children to make arrangements (including travel from abroad) to be with their mother at the time that ventilatory support was going to be withdrawn. This in itself was highly unusual (namely a declaration that permitted continuation of life-sustaining treatment for a further eight weeks, despite not being in AH’s best interests). However, Hayden J determined that AH herself would have wished to have her family present with her at the time that the ventilatory support was withdrawn.

The Conventional Wisdom Prevails: a refusal to consent to medical treatment by a Gillick competent minor is NOT determinative

Judgment has today been handed down in In the matter of X (A Child) (No 2) [2021] EWHC 65 (Fam) an essential read for the law on consent to medical treatment in relation to those under 16 and those aged 16 and 17.

The facts:

X suffers from sickle cell syndrome and is a Jehovah’s Witness, as is her mother. On occasion, X is admitted to hospital in a crisis when, in the opinion of her treating clinicians, a top up blood transfusion becomes an imperative necessity. There were two such crises in June and October 2020 when urgent applications had to be made to the court for declarations permitting top up blood transfusions – see: Re X [2020] EWHC 1630 (Fam) and Re X [2020] EWHC 3003 (Fam).

As X had presented in crisis twice in a short space of time (the last crisis having been in 2015), and having taken on board the views expressed by the court regarding the unsatisfactory nature of such serious applications being made on an urgent basis, the Trust sought a rolling two year order (to continue until X turns 18) authorising further top up blood transfusions in the event of further serious deterioration in X’s condition. The application in October 2020 came before Sir James Munby who having made the declaration permitting a single top up blood transfusion to deal with the immediate crisis, adjourned the matter for proper and due consideration to be given to X’s application that Gillick competent minors should be afforded the exclusive right to decide their own medical care in the same way as their peers aged 18 or over.

Mental capacity and medical treatment—anorexia nervosa and forced feeding

An NHS Foundation Trust v AB

The issue in this case was whether, as the trust asserted, AB lacked capacity to make decisions about treatment relating to anorexia nervosa. She had suffered from this condition since the age of 13 and was now 28. All treatment, including nasogastric tube feeding which was the only life-prolonging treatment now on offer, had failed, and her weight of just under 26 kg (a body mass index of 9.7) was incompatible with life. Tube feeding now would cause her enormous trauma, put her at significant physical risk and could itself be fatal. The court found that AB’s anorexia was so chronic and severe that any decision she made about food, calories or weight gain could not be considered capacitous. The court also agreed that it was not in AB’s best interests to undergo further tube feeding, with or without restraint. AB died on 23 August 2020, before her application for permission to appeal the capacity decision was listed.