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When in hospital, she would interfere with her tracheostomy tube if her sedation was either withdrawn or reduced.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.

Re G (Court of Protection: Injunction) [2022] EWCA Civ 1312  (here)

The Court of Appeal has helpfully clarified the legal test to be applied in the Court of Protection (‘CoP’) when considering an application for an injunction.

The Background

G, a 27-year-old woman who suffers with serious progressive disabilities had, since the age of 13, been an inpatient in a paediatric hospital operated by the NHS Trust. In December 2021, Hayden J found that it was “irreconcilable with her dignity” for G to remain in a paediatric ward and so declared that it was in her best interests to be discharged to a specialist care home (see judgment here). Her parents and grandmother, who wanted G to live at the family home, opposed G moving to the care home.

The Trust and CCG[1] believed that the parents and grandmother were making determined efforts to frustrate G’s transfer and so applied for an injunctive order binding them to the terms of a behavioural framework. When the matter came before Hayden J he granted injunctive relief in respect of all three adults.

The parents and grandmother appealed that order arguing, amongst other grounds, that the Vice-President had been wrong to adopt and apply the test of “necessary and expedient”, found within s.16(5) Mental Capacity Act 2005, as the basis for granting the injunctions.

The full episode, hosted by Christopher Johnston KC featuring Claire Watson KC is available here.

In this episode, Chris and Claire discuss medical treatment decisions related to assisted reproduction, as discussed in chapter 11 of the new fourth edition of Medical Treatment: Decisions and the Law.

Chris and Claire look at XX v Whittington Hospital NHS Trust, Warren v Care Fertility Ltd and the recent case of Jennings v HFEA while discussing the difference between Californian surrogacy versus UK surrogacy, the interpretation of legislation by judges in line with article 8 of the Human Rights Act and the exporting and importing of gametes.

This podcast is also available on Spotify and Apple Podcast.

The full episode, hosted by Christopher Johnston QC featuring Sophia Roper QC, is available here.

In this episode, Chris and Sophia discuss medical treatment decisions for minors, as discussed in chapter 4 of the new fourth edition of Medical Treatment: Decisions and the Law. Chris and Sophia consider the process by which the courts, including the appellate courts, reach decisions in a wide range of difficult cases including that of Tafida Raqeeb, where the parental views prevailed over those of the hospital Trust.

Members of Serjeants’ Inn Chambers have represented parties in recent cases concerning the withdrawal of life-sustaining treatment from children, including the proceedings relating to Tafida Raqeeb, Charlie Gard, Alfie Evans and Archie Battersbee. 

This podcast is also available on Spotify and Apple 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.