Call for urgent inquiry as man who said he wanted to live is left to die by Court of Protection ruling
9 June 2020 Issued by: Christian ConcernChristian Concern is calling for an urgent public inquiry into the ‘secretive’ court which authorises withdrawal of life-saving treatment from NHS patients. The appeal to the Justice Secretary, Rt Hon. Robert Buckland, was made after a judge ruled that a man in intensive care at Barnsley hospital should have his life support switched off, despite his last wishes stating that he wanted to receive the treatment needed to live.
The 34-year-old patient known as ‘MSP’ had previously said he did not want to live with a permanent stoma, a surgical hole in the stomach to which a colostomy bag is attached to collect digestive waste.
Crucially, however, on May 27 when faced with the prospect of losing his life, the patient changed his mind and said he did want the treatment to live ahead of an operation which has now left him in intensive care.
Despite this, Mr Justice Hayden, in a judgment handed down on 1 June has overruled the patient’s wishes relying on statements which are legally invalid.
Mr Justice Hayden is best known for his controversial 2018 decision to withdraw life support from 1-year-old Alfie Evans, despite the opposition of his parents who wanted to fly him to an Italian hospital willing to provide treatment.
In an urgent letter to Justice Secretary Robert Buckland, the Christian Legal Centre (CLC) is urging the government to set up an urgent public inquiry to review the cases where doctors were ordered to switch off life support by the Court of Protection or the Family Division of the High Court.
The CLC has also written to the Official Solicitor, Sarah Castle – the Ministry of Justice official who was joined to the court proceedings to represent MSP’s interests – urging her to appeal the decision to the Court of Appeal.
Document was legally invalid
MSP had developed a gastric ulcer and other gastroenterological problems in 2019 and had a temporary stoma bag fitted.
He told his parents and doctors that he “utterly loathed” it and that he would rather die.
As his condition developed, MSP wrote a document known as an ‘Advance Directive’ in February 2020, where he refused his consent to “the formation of a stoma… that is expected to be permanent or with likelihood of reversal of 50% of under” or any “requirement for ongoing medical treatment that will prevent me from living independently”.
He prepared the formal document but as Mr Justice Hayden acknowledged in last week’s court hearing, the document was not properly executed or witnessed, and is therefore legally invalid.
At MSP’s insistence, doctors removed his temporary stoma on 14 May.
He changed his mind
A few days later MSP had to be rushed back to hospital with severe abdominal pain and sepsis. ‘Dr M.’, the consultant gastroenterological surgeon on duty, told him that the only way to save his life was to fit a stoma bag immediately.
Faced with this choice, MSP chose to have the bag inserted during an operation indicating that he had changed his mind and wanted to live. Justice Hayden himself recognised this in court last week when he said: “There is no doubt that MSP expressed his consent to the stoma being inserted”.
On May 27, the stoma bag was urgently fitted during an operation leaving MSP in intensive care and heavily sedated, but with a good chance of survival.
Dr M.’s colleagues, who had treated MSP before, were surprised to learn of his change of heart. The hospital then made an urgent out-of-hours application to Mr Justice Hayden to determine whether that life-saving treatment was or was not in MSP’s best interests.
The application was supported by MSP’s parents, and an urgent hearing followed by Skype on June 1 which resulted in Mr Justice Hayden making the order to withdraw life support.
Deep compassion needed
Andrea Williams, chief executive of Christian Concern, said: “This case has come to the public’s attention and on the face of the judgment serious questions are raised and need to be answered.
“When matters of life and death are at stake the system has to be transparent and subject to proper scrutiny.
“What is vital to understand in this case, is that the patient changed his mind when he was critically ill and faced with the prospect of dying. Now he is in a heavily sedated state, so we cannot know what he wants, all we do know is his last wish was to live.
“In such a situation, deep compassion must be shown to MSP and his final expressed wishes need to be taken seriously, especially if they were a plea to be saved and to live. This is why a Court of Appeal review of this decision by Mr Justice Hayden is clearly appropriate.
“It cannot be right that the law can give a judge absolute power to seemingly enforce his own ideas of whether it is in a patient’s best interest to live or die.
“This is made even worse when it is up to the same judge to say whether the patient lacks capacity to decide for himself. Taken together, this amounts to an unlimited power over anyone’s life and death. This is compounded by the secretiveness of the Court of Protection and Family Division proceedings.
‘”This man’s life now hangs in the balance because of a judgment that begs many questions, and we are calling on the Justice Secretary [Robert Buckland] to set up an urgent public inquiry into the operation of this aspect of the legal system. We also call upon the Official Solicitor and the hospital to apply to have this case reviewed by the Court of Appeal.”
Notes to editors
Judge Hayden’s judgment: https://www.bailii.org/ew/cases/EWCOP/2020/26.html
Letter to Justice Secretary Robert Buckland: https://christianconcern.com/wp-content/uploads/2018/10/CC-Resource-Misc-MSP-Buckland-Letter-200609.pdf
Letter to Dr Richard Jenkins, chief executive of Barnsley hospital NHS Foundation Trust: https://christianconcern.com/wp-content/uploads/2018/10/CC-Resource-Misc-MSP-Dr-Richard-Jenkins-Letter-200609.pdf
Letter to the Official Solicitor for Ministry of Justice: https://christianconcern.com/wp-content/uploads/2018/10/CC-Resource-Misc-MSP-Official-Solicitor-Letter-200609.pdf
