Three senior judges in London have dismissed an appeal brought by the daughter of an incapacitated woman whose medical treatment became the subject of court proceedings.
A tweet explaining that the co-director of the Open Justice Court of Protection Project had been refused remote access to a hybrid hearing perked up my ears somewhat.
And so I trundled down to Court 68 at the RCJ to see what was going on.
A 78-year-old woman, known for legal reasons only as VA, had been the subject of a so-called best interest decision before judge Mr Justice Hayden on 25th Aug 2023.
The decision concerned what the best course of medical treatment is that VA should receive in the last few days and weeks of her life.
Having only seen the final 90 minutes of this hearing I learned that Hayden J effectively had to choose between extubation [defined as the removal of an endotracheal tube, which is the last step in liberating a patient from the mechanical ventilator] or a tracheostomy [defined as a procedure to help air and oxygen reach the lungs by creating an opening into the trachea (windpipe) from outside the neck].
Hayden J had judged that extubation was in VA’s best interests. This decision was disagreed with, hence why it was now at the Court of Appeal.
The judgment of Hayden J has since been published.
Barrister Ms Claire Watson KC, representing the Official Solicitor, said she “ought to begin by saying that the family really are to be commended” in this “tragic and challenging case“.
Ms Watson explained that the “family were not represented [at the hearing] but had been given the opportunity to ask questions of the witnesses.” She explained that Hayden J had “asked the questions he felt the family might want answers to“.
The court was told that Hayden J “balanced the views of the family against the medical evidence” and “addressed the stark reality of the medical evidence” when making the decision.
Ms Watson concluded that the decision was “not arguably wrong and permission in this case ought to be refused” adding “they are a loving family … very clear from the evidence … all they do want for her is dignity in death“.
The court heard from VA’s three children, two of whom were sat in court (and were diligently following submissions in the bundle) and one who had joined the hearing via video link from abroad.
Lord Justice Jonathan Baker, one of the three judges hearing the appeal, said “I promised the family they would have the chance to respond…what would you like to say“. He later explained that “normally non-parties don’t get to speak. In this case we’ve bent the rules“. [From reading the subsequent judgment it appears that only one of the children had been formally joined as a party to appeal]
The court first heard from daughter A, who criticised the way that the trust had started legal proceedings. The litigation was not in her mothers best interests she said.
Her mother was “still very much alive…she is not a subject, she is a human being“.
A common theme of the submissions from the family was said to be a lack of communications from the NHS Trust about the mothers medical treatment.
Daughter A asked “who’s making decisions in terms of her case?” explaining that “no one in the family is being informed.“
There was also a failure of the trusts “duty to consult” she said, explaining that there had been a “breakdown in trust” following the imposition of a ‘do-not-resuscitate’ order on her mother.
“We would love to have been part of that decision” but it had been “just assumed we would be in agreement” she said. A meeting which decided to impose the DNR was not rescheduled to accommodate her we were told. “I called and begged to rearrange that meeting but the DNR took place“.
No one had explained to her the treatment options she claimed adding “in other hearings I’ve asked if someone could be identified to discuss medical treatment“.
We next heard from daughter B, who was appearing via video link. She began with more criticism: “I would like to say I do think the hospital trust are being quite misleading in the way they tried to engage with the family“.
She had travelled back to the UK in June and July and had taken “every opportunity to engage“. She had “found my family exhausted and broken” on her arrival back to the country.
“On 22nd May there was a meeting with the cardiologist and I was on the phone but it was very difficult to follow.“
The “biggest opportunity was the June meeting” but we were told there was “still a lack of transparency after that” with “aspects of the care plan which were not made aware of“.
Various terms like “escalation or de-escalation” were never discussed.
Daughter B said that “we’re being told our mother is dying…it is very much through the court we are hearing this” and not from doctors or clinicians.
She said the decision of Hayden J “doesn’t align with what my mother would have wanted”.
“Thank you for the opportunity for me to say this” she concluded.
We lastly heard from VA’s son who said he didn’t “understand how my mother came to be in this condition“.
He also spoke about the DNR – “the trust knew from the beginning we were against it in April. We made it very clear verbally and in complaints.“
The mother had suffered from five cardiac arrests but there had not been “a single meeting with the cardiologist“.
He said that “no one has sat down with myself to explain the [legal] process” adding that the “majority of information about court proceedings has been on the internet, which is not the best source“.
Continuing a theme he said he had “learnt more about her condition at court rather the whole months she has been in hospital“. “We don’t know what treatment she is receiving. When we go down to her bed all we here is that she’s stable“.
The son explained that complaints had led to offers of meetings but often with only 2-hours-notice. These were then recorded as a cancellation he said.
Lord Justice Baker, flanked by Lord Justice Lewis and Lord Justice William Davis ended the hearing saying the court would hand down its decision at a later date.
“I want to say first of all, on behalf of all three of us, we have been extremely helped by the way the way the put the case, including the family members
“We see a lot of litigants in person in this court. It’s unusual for litigants in person to put their case as well and effectively on such a difficult issue as you have“
He said their consideration of the judgment would require “thorough and careful thought” but said they hoped they would “reach a decision as quickly as we can given the predicament your mother is in“.
Baker LJ told the family members that “very sadly you mum is near the end of her life” and he wished “to express our deepest sympathy“. He said he hoped “all of you manage to spend time with her over the days and we weeks she has left“.
“She is our main concern“.
The judgment was handed down at 2pm on Friday 13th October 2023. The court concluded that “the appellant is granted permission to appeal but her appeal is dismissed.“
CA-2023-001710 – Appeal From the Court of Protection
Between:
VA (by her litigation friend, the Official Solicitor) & Anr
Before:
Lord Justice Baker, Lord Justice Lewis and Lord Justice William Davis
Court 68
Royal Courts of Justice
05/10/2023 10.30am
Mouse in the Court 