Pavel Stroilov, Consultant to the Christian Legal Centre and Russian dissident, comments on the case of ‘MSP’.
A fortnight ago Dr M., a consultant surgeon at Barnsley Hospital, saved the life of a Mr MSP, a 34-year-old man suffering from serious bowel problems. The only way to save him was by inserting a ‘stoma bag’ – a surgical hole in the stomach to which a colostomy bag is attached to collect digestive waste. Like most patients who need a stoma bag, MSP. hated the idea and was previously eloquent in stating he would rather die. However, when he ultimately faced that choice in the Intensive Care Unit, he changed his mind and agreed to the operation, which successfully went ahead on 27 May. Medically, he now had a good chance of living to a ripe old age.
However, he has not been allowed to. In a judgment last week, Mr Justice Hayden ordered the Hospital to dehydrate MSP to death – on the grounds that the embarrassment and inconvenience of living with a stoma bag is not in his best interests. Today we have heard news that MSP has died.
The judge in the case is the same Mr Justice Hayden who infamously condemned 1-year-old Alfie Evans to death in 2018, crushing the resistance of Alife’s parents and thousands of their ‘Alfie’s Army’ supporters. In that battle, I made a close face-to-face acquaintance with the Learned Judge – he nearly sent me to prison for an attempt to frustrate the execution of his order. I can therefore offer my insight into the character of the judge who, in the 21st century, is still in the rare position of sitting in judgement over people’s lives and deaths.
Unfortunately, one of the things I know about him is that his published judgments are not a reliable source of information about the case. He makes a lot of factual mistakes (all going the same way). Nevertheless, most cases of this kind are carefully anonymised, so his judgment is the only source we have.
It vividly portrays MSP as,
“a highly intelligent man, voraciously interested in the world, politics and affairs. He was an A star student, hard-working and respected by his colleagues at school, university and in the workplace. He is 6ft 3, handsome and meticulous in his appearance. His step-sister has gently suggested that he might have been prone to more than a little male vanity. Recently, struggling to walk any distance, MSP bought himself a pair of designer sunglasses so that he could look smart and confident when driving in his car. His mother told me that he spent two hundred pounds on them. Though she plainly considered this extravagance, I sensed that she delighted in what she saw as her son’s engagement in the world. This, in my assessment, is not mere vanity but a reflection of MSP’s determination to conceal the impoverishment of his health and to present himself to the world as competent and active.”
As MSP developed a gastric ulcer and other gastroenterological problems, doctors fitted him with a temporary stoma bag in 2019. He “utterly loathed” it and told his parents and his doctors that he would rather die. He wrote a document known as an ‘Advance Directive’, refusing his consent to “the formation of a stoma… that is expected to be permanent or with likelihood of reversal of 50% or under” or any “requirement for ongoing medical treatment that will prevent me from living independently“.
As Mr Justice Hayden acknowledges, 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. Predictably, a few days later he had to be rushed back to hospital with severe abdominal pain and sepsis. Dr M., 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 stark choice, MSP changed his mind. As Mr Justice Hayden puts it, “there is no doubt that MSP expressed his consent to the stoma being inserted.”
While MSP was in intensive care, on life support and sedatives but with good chances of survival, Dr M.’s colleagues who had treated MSP before were surprised to learn of the developments. So much so that the hospital made an urgent out-of-hours application to Mr Justice Hayden to determine that life-saving treatment was not in MSP’s best interests. The application was supported by MSP’s parents. An urgent ‘hearing’ – which was actually just a Skype conference – was set up on 1 June, and the judge duly made the order to withdraw life support.
It is likely that MSP would have survived the removal of artificial ventilation. However, he will not be provided with artificial nutrition and hydration, and heavily sedated to keep him unconscious until he dehydrates to death. That has now happened. The existing system provides no practical mechanism for the judgment to be appealed, as both the hospital and the family agree with it. Traditionally, the function of advocating for preservation of life in such circumstances is entrusted to the so-called Official Solicitor, a Ministry of Justice office, who is made a party to the case for that purpose. However, in this case, like in most cases in recent years, the Official Solicitor, Sarah Castle, chose to sing in unison with the pro-death consensus. Yesterday we asked her to appeal the decision. Now, it is too late for MSP.
Yet, a Court of Appeal review would clearly have been appropriate for this judgment, which begs many questions:
Firstly, it is indisputable that MSP had changed his mind from what he had said and written when he did not face an immediate danger of death. Mr Justice Hayden is at pains to explain this away. He speculates that MSP probably did not appreciate, and Dr M failed to impress it on him, that the operation would be irreversible. That is hardly a good enough reason to disregard a clear decision made by an adult of sound mind. After all, it is easy to say “I’d rather die” about something in the future; it is an entirely different thing to face imminent death and yet to refuse life-saving treatment. In that situation, a man may well make a clear and rational choice to survive, even at a high price – whatever foolish things he may have said about that before. The Judge does not even consider this obvious possibility.
Secondly, why is Mr Justice Hayden making this decision at all? MSP had capacity to decide for himself. He was sedated, but he was not insane. He was just asleep. Section 4 of the Mental Capacity Act 2005 required Mr Justice Hayden to consider “(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be.”. Nothing in the judgment answers those questions.
Thirdly and relatedly, why did the hospital make an urgent out-of-hours application, and why did the Court agree to consider it so urgently?
The bigger problem behind this is that the law gives the judge absolute power to enforce his own ideas of whether it is in a patient’s best interest to live or die. Moreover, 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.
The obvious danger is that this immensely powerful position may at some point be occupied by an activist for euthanasia.
Euthanasia is illegal in this country, but where there is a will, there is a way. In combination, two lawful steps give you the same result as euthanasia. First, sedate the patient heavily as part of palliative care to make him comfortable – with the side-effect that he cannot eat, drink or breathe without assistance. Second, withhold all life-saving treatment, including ventilation, hydration and nutrition.
This is the extreme scenario. In real life, where the patient already has a life-threatening illness, a lot less is usually required to ‘allow him to die in dignity’, as Hayden J and his colleagues like to put it.
Having been closely involved in Alfie Evans’s case as one of the family’s legal advisors at Christian Legal Centre, I observed Mr Justice Hayden at hearings, read transcripts and written judgments, desperately trying to understand the man’s mind – because a child’s life depended on it. I encountered him at uncomfortably close quarters, at one of the most dramatic moments of that dramatic case:
Shortly before the moment Mr Justice Hayden had appointed for Alfie’s death (hours rather than days), Alfie’s father walked into the Hospital with a foreign air ambulance team to ‘self-discharge’ his son and fly him to Italy for treatment. Tom Evans was acting on my written advice, where I argued that it would be lawful for him to do so. Later, the Court of Appeal vehemently disagreed with me, but the legal position was a lot less clear at the time.
The hospital called security and then the police to stop Tom from taking Alfie away. Tom appealed to his supporters on social media. Waiving my letter in the air, he said that he had a document to prove he was acting lawfully. A crowd of protesters gathered outside the Hospital. Urgent emails were sent to Mr Justice Hayden the same evening, and he responded by issuing two orders. First, an injunction which prohibited Alfie’s parents or anyone else taking their son out of the hospital where he was destined to die. Second, an order addressed to me personally, which summoned me to appear before him at 10am the following morning.
I am now looking at the note of that encounter which I wrote immediately afterwards. Having interrogated me about what had happened the day before, the Learned Judge declared: “You might have had a promising legal career ahead of you, which as you must have appreciated, now hangs on the balance. You may now address me.”
I replied as follows: “My lord, very grave matters are at stake – matters of life and death and liberty. I went to Liverpool last night. I saw Alfie, just for a minute or two, at a random moment. I could not believe that was the same child I had read about in Your Lordship’s judgement. He makes voluntary movements; he reacts; when I said hello to him, he opened his eyes and looked at me, and in his eyes I could see a desire to live. A terrible mistake has taken place.” I knew that Mr Justice Hayden had visited Alfie in hospital before making his decision. I implored him to do so again and he would see the truth.
He cut me short. He refused to see Alfie, just saying he was satisfied with medical expert evidence. He concluded: “In a legal career you should know that if you over-identify yourself with your clients you become very ineffective as an advocate. You have come perilously close to being in contempt of court. That would have been the end of your career, and I was prepared to send you to prison. If this happens again, I will send you to prison.”
One might think he was being generous; but from that moment, he seemed to become obsessed with me. At the hearings which followed as we fought to save Alfie’s life, he saw my “malign hand” (his words) behind every difficulty which arose on the way of execution of his order as to Alfie’s best interests. Again and again, Counsel desperately tried to bring him back to discussing Alfie; but the Learned Judge insisted on talking about me, sometimes degenerating into rants.
For me, the upside of his behaviour was a clearer insight into Mr Justice Hayden’s personality and mindset. He firmly believes that a seriously disabled life is not worth living, and he puts this principle into practice whenever a life-and-death case comes before him. Even more worryingly, he enjoys grandstanding in these life-and-death proceedings. “We are all Alfie’s Army,” he told the family’s supporters who attended a hearing. He enjoys patronising his victims; and there is a perverse and over-imaginative empathy in his death sentences. He gives vivid accounts of their personality, portraying Alfie’s father as an intelligent, good-hearted but hot-headed working class lad; Alfie as a warrior (playing up to his father’s rhetoric); me as a “fanatical and deluded young man”; and now MSP as a tall handsome young man firmly determined to devote his life to womanising. He is fairly good at it – and that is the worst part. These vivid literary images blind him to reality, which is far more complex and unfathomable and often very different from what he imagines. It is upon his literary characters that he passes his judgments, which are then executed on real people.
He is a dangerous man in a position of enormous power; and there are others like him on the Bench. Until proper safeguards are introduced into the law against their arbitrary decisions, nobody’s life is safe.
Nevertheless, there is something you can do to protect yourself even under the law as it now stands: you can issue a lasting power of attorney to someone you trust (a family member or a friend), so that they, and not Mr Justice Hayden, can step in your shoes and make decisions if something happens to you. If a clear lasting power of attorney is in place, it will be a lot more difficult for euthanasia activists in medical or legal positions of power to attribute their death-wish to you.
Sadly, for MSP – it is too late.