COVID-19: Allocation and withdrawal of ventilation – the urgent need for a national policy

This blog is written towards the beginning of the Covid-19 lockdown. We are not yet three weeks in, and do not know what the future holds. This post has already been updated once since publication and in the fast paced news of coronavirus, more updates will come. This post therefore may not be an exhaustive analysis, but we will revisit the subject as and when developments require. We would also welcome any relevant new information on the topic, especially from those at the front line: please send to sroper@serjeantsinn.com.

The Government is clear that there is not, and is unlikely to be, a situation where there are more patients nationally requiring ventilation than there are ventilators. If achieved, avoidance of the situation faced by doctors in Italy and Spain will come about by a combination of increased supply of ventilators, moving patients and ventilators around to match supply to demand, and the application of tough triage criteria, so that access to ventilation is limited to those likely to make a recovery.

But avoidance cannot be guaranteed. Local surges in demand will occur, and may lead to temporary shortages. The risk of demand exceeding supply exists. News reports in The Guardian and Daily Mail suggest that this has already happened in some hospitals.

Were that risk to eventuate, the withdrawal issue would arise:

Can a ventilator ever lawfully be removed from a ventilated patient who may be deriving benefit from it, for the purpose of providing that ventilator to different patient?

If it can, how should withdrawal and reallocation decisions be made?

In our view, these questions should be asked and answered now, before the risk eventuates, and in the profoundest hope that it never does.

A life worth living: Continuation of clinically assisted nutrition and hydration in an incapacitous but sentient man

Mostyn J’s judgment in a novel case concerning withdrawal of life sustaining treatment in the Court of Protection’s first ever Skype trial

In a trial lasting three days, conducted entirely remotely through the medium of Skype, no one could fail to be moved when watching a video clip of a man in his seventies, known as “AF” in these proceedings, moving his hand rhythmically, marking the beat to the tune of Irish Eyes. What made this so poignant was that AF had suffered a catastrophic stroke in May 2016 which rendered him severely disabled and incapacitous, but still sentient and, as the Judge observed, AF was plainly enraptured listening to the musician playing before him.

This very sad case found its way into a newly-styled virtual courtroom the day after Boris Johnson urged the nation to avoid non-essential contact in the midst of the Covid-19 pandemic. Thus began the first ever remote trial on the most sensitive of issues – should AF continue to receive life-sustaining nutrition and hydration via a percutaneous gastrostomy (“PEG”) or should it be withdrawn, a decision which would almost certainly lead to his death.

Court offers guidance on legal framework applying to anticipatory declarations (An NHS Foundation Trust and another v R)

An NHS Foundation Trust and another v R [2020] EWCOP 4, [2020] All ER (D) 07 (Feb)

Private Client analysis: The judgment considers the correct legal framework to apply where a person before the Court of Protection has capacity to make decisions regarding their medical treatment but could lose that capacity under certain circumstances. Rhys Hadden examines the case.

What are the practical implications of this case?

The judgment deals with a number of different issues in relation to serious medical treatment cases, particularly in cases involving obstetric care and Caesarean sections.

The central focus of the decision is concerned with identifying the correct legal framework to be applied where the Court of Protection is confronted with the position that the person before it currently has capacity to make the relevant decision(s) but there is clear evidence that under some circumstances they may not do.

Skype in the Court of Protection

The courts in the time of coronavirus: a personal perspective on the first remote hearing during the crisis

Mostyn J hears trial concerning withdrawal of life sustaining treatment with five parties and at least 20 participants over Skype for Business (REVISED POST)*

In December 2019, Keehan J presided over a directions hearing in a serious medical treatment application brought by a CCG. A dispute had arisen as to whether or not it was in the best interests of A, a man in his 70s who suffered a stroke in 2016, to continue to receive clinically assisted nutrition and hydration (CANH). A’s daughter believes CANH should be removed; his GP thinks it should stay in place. A is not in a prolonged disorder of consciousness: despite significant impairment, he communicates with those caring for him in gestures and occasional words, and enjoys seeing animals and children, and hearing poetry.

In itself, this would be an unusually difficult and sensitive case for the Court of Protection, and Keehan J listed it for four days, including a day of judicial reading time. As preparation progressed, it became clear that it was going to be a tight timetable. Between them, the five parties (CCG, A, represented by the Official Solicitor, A’s daughter, A’s GP, and the local authority) were calling eleven witnesses to give oral evidence, including three independent expert consultants; all five parties would be making closing submissions; and the evidence available to the court ran to well over 4000 pages. What makes this case even more unusual is that the judge listed it to start on Tuesday 17 March 2020, less than 24 hours after the nation was directed to avoid all non-essential contact to stem the rising tide of Covid-19.

The UK Coronavirus regulations – legal powers to control a public health crisis

At 6.50 am on 10 February 2020 Matt Hancock signed off the Health Protection (Coronavirus) Regulations 2020, SI 2020/129. The press reported that the urgent need for the regulations was that some people subject to quarantine by agreement had said they could see little point in the process and intended to leave. I suggested when I last wrote about quarantine that the lack of an enforcement power made contractual agreement a shaky basis for detaining hundreds of people for 14 days.

The Secretary of State has now put in place a raft of coercive powers, including a power to hold people in isolation and for a constable to take someone back to isolation – using reasonable force – and to enter premises to enforce the regulations. This note summarises those powers.

The new regulations create additional powers to control people who may have coronavirus where the Secretary of State declares that the transmission of coronavirus is a “serious and imminent threat to public health” by way of a notice on the gov.uk website – gone are the old days of publishing notices in the Official Gazette.  At the same time as making the regulations the Secretary of State declared that such a threat existed, and that, for the purposes of exercising these powers, Wuhan and Hubei province were “infected areas” and that Arowe Park and Kents Hill Park hospitals were “isolation facilities”.