Barnsley Hospital NHS Foundation Trust v MSP (by his litigation friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 01 June 2020 |
| Neutral Citation | [2020] EWCOP 26 |
| Date | 01 June 2020 |
| Docket Number | Case No: 1360935T |
| Court | Court of Protection |
[2020] EWCOP 26
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 1360935T
Bridget Dolan QC (instructed by DAC Beachcroft) for the Applicant
The Official Solicitor, in person, as litigation friend to MSP
Hearing dates: 1 st June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered following a remote hearing conducted on a video conferencing platform and attended by the press. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the names and addresses of Respondent, his family and the treating doctors must not be published. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
On the evening of Friday 29 th May 2020, whilst on duty as the Out of Hours Judge, I received an application on behalf of Barnsley Hospital NHS Foundation Trust. The application, presented by Ms Dolan QC, related to MSP, a 34-year-old man with a complicated abdominal history which has caused him to have significant gastrointestinal problems for approximately 10 years. The issue framed in the application is whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.
Historically, it has not been possible to join the Official Solicitor in these urgent Out of Hours applications. The offices of the Official Solicitor have not been able to identify the resources to facilitate it. Ms Sarah Castle has, since her appointment as Official Solicitor, been determined to remedy this situation. As of last week, she is now able to provide Out of Hours cover for serious medical treatment cases, personally supported by a number of senior members of her team. This application is the first time the Official Solicitor has been called upon in these circumstances and I should like to express my gratitude to her. I should also add that I have found her involvement to be helpful and, I have noticed that the family of MSP have plainly welcomed her input.
For more than a decade MSP has had painful and complex abdominal problems. In July 2013 he had a gastric ulcer which required a laparotomy and significant care in the Intensive Care Unit (ICU) afterwards. The primary gastroenterology diagnosis is unclear but MSP has experienced bleeding from the bowel, chronic abdominal pain and poor absorption of nutrients.
In October 2019, MSP underwent surgery where an ileostomy was formed. There was a significant prolapse in February 2020, which it is clear MSP found to be very distressing. At MSP's request the stoma was reversed on 14 th May 2020. Though I will develop this, in my reasoning below, it requires to be recorded here that MSP utterly loathed life with a stoma.
Following surgery MSP returned home to his mother and father, where he has lived throughout his life, apart from his time at university. Sadly, but not entirely unsurprisingly, as I read the evidence, MSP returned to the hospital a few days later with very significant abdominal pain and sepsis. There was also acute distention of the abdomen. A CT scan was undertaken, revealing an obstruction of the small bowel and a drain was inserted which released three litres of faecal fluid. MSP's position was plainly very grave. Mr M, who is the consultant gastroenterological surgeon on duty, responsible for MSP's care at this admission, impressed upon his patient that his condition was life threatening and that he required a stoma to be formed immediately.
There is no doubt that MSP expressed his consent to the stoma being inserted. This consent however seemed entirely contrary to his unambiguous rejection of the stoma, expressed bluntly to three consultants with whom he had discussed it. It also appeared entirely inconsistent with everything he had said to his mother, father and step-sister on the point. Significantly, on 4 th February 2020 MSP had written a carefully crafted Advance Directive which he had copied to his parents and to his step-sister. Outside the hospital setting these were the only three people who knew MSP had a stoma. He did not even wish his grandmother to be told.
Many people require a stoma to be fitted and I have no doubt that the vast majority make the necessary accommodations to ensure that it does not unnecessarily inhibit their enjoyment of life or become an impediment to their personal and sexual relationships. However, this was simply not the case with MSP. There is powerful evidence that as a young man in his thirties who, as his sister has said, “knew he was good looking”, MSP could never accept life with a stoma. No amount of support, love or understanding could change MSP's mind. The stoma, it seems to me, ran entirely contrary to MSP's perception of who he is. Its existence was corrosive to his self-esteem.
The Advance Decision, which MSP entitles ‘Advanced Directive’ contains the following paragraphs:
“To avoid any doubt, and unless stated to the contrary below, I confirm that the following refusals of treatment are to apply, even if my life is at risk or may be shortened as a result.
I refuse ALL medical treatment or procedures/interventions aimed at prolonging or artificially sustaining my life in the event that any or all of the following occur:
• I have an imminently life-threatening physical illness or condition from which there is little or no prospect of recovery (in the opinion of two appropriately qualified doctors);
• I suffer serious impairment of the mind or brain with little or no prospect of recovery together with a physical need for life-sustaining treatment/interventions (in the opinion of two appropriately qualified doctors);
• I am persistently unconscious and have been so for at least 52 weeks and there is little or no prospect of recovery (in the opinion of two appropriately qualified doctors);
• I have been diagnosed as being in a persistent vegetative state or minimally conscious state and have been so for at least 52 weeks and there is little or no prospect of recovery (in the opinion of two appropriately qualified doctors).”
It is clear that MSP gave considerable thought to the scope of the interventions that might fall to be considered. His document continues:
I refuse elements of treatment that, while potentially necessary for sustaining or prolonging life, will result directly or indirectly in:
“The loss of function of both hands, through amputation or physiological changes, including three or more fingers on any one hand;
The formation of a stoma, through an ileostomy, colostomy, urostomy or similar, that is expected to be permanent or with likelihood of reversal of 50% of under;.
The permanent disfigurement of my face through the removal of sections of my skull or other maxillofacial structures; The requirement for ongoing medical treatment that will prevent me from living independently, either long-term or indefinitely, i.e. the requirement for ongoing kidney dialysis or similar.”
A further illustration of the care and thought that went into the document is demonstrated by the meticulous detail relating to music to be played in the event that MSP fell into a coma. In her evidence, his mother told me that MSP had described to her violent and frightening dreams when he had been ventilated on ICU previously in 2013. He discussed these with his mother in detail and returned to them on a number of occasions. This illuminates the close and loving relationship between the two and reinforces my impression of her as determined, as she puts it, to be a voice for her son. His mother tried to unravel and make sense of the dreams. In the course of the last few months I have been made aware, from a number of very senior consultants, that these frightening and often violent dreams are sometimes a feature of the experience of patients who have been ventilated. It is recognised as “ICU syndrome” and I have heard it compared to Post Traumatic Stress Disorder (PTSD). The intrusive nature of ICU can never be underestimated. MSP told his mother that he had nightmares of being raped. Sensibly, to my mind, she helped her son to understand that this was probably a reaction to the many tubes that had to be inserted into him. The music MSP set out in a playlist in his Advanced Directive document was selected to relax him if he found himself in this situation again. The music is eclectic, ranging from The Smiths (introduced to him by his father) to the Adagio for Strings, by Samuel Barber. The document also makes provision for music at his funeral as well as incorporating a number of diffident suggestions that strike me as empathetic to the family who he is contemplating leaving behind. I emphasise all these details because they are, to my mind, indicators of the enormous amount of time and thought that had been given to this document.
At the hearing on Friday evening, I heard from Dr I, who had been treating MSP for some time. He was surprised that MSP had agreed to the stoma, which was formed surgically on 27 th May 2020. Today, I have heard from Dr W, Consultant...
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