University Hospitals Birmingham NHS Foundation Trust v Sudiksha Thirumalesh (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peel |
| Judgment Date | 29 September 2023 |
| Neutral Citation | [2023] EWCOP 43 |
| Court | Court of Protection |
| Docket Number | Case No: 1405715T |
[2023] EWCOP 43
Mr Justice Peel
Case No: 1405715T
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Victoria Butler-Cole KC (instructed by Bevan Brittan LLP) for the Applicant
Katie Gollop KC (instructed by the Official Solicitor) for the First Respondent
Bruno Quintavalle (instructed by Andrew Storch Solicitors) for the Second and Third Respondents
Hearing date: 22 September 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 29 September 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The judge has given leave for this judgment to be published
Introduction
I shall refer to the First Respondent, the subject of these proceedings, as ST. This is for convenience only. She is named, as are the other parties, in the heading to this judgment.
In immensely sad circumstances, ST died on 12 September 2023.
The family of ST have concerns about the care provided to ST by some of her treating team, but they have expressed in evidence their gratitude to the Hospital staff as a whole. I make no comment on the specific allegations by the family, but my reading of the voluminous evidence suggests to me that overall, the multiple clinicians, nursing staff and others charged with caring for ST have done so with dedication, conscientiousness and sensitivity.
The issue before me is whether to lift in whole or in part a Transparency Order made by Francis J on 14 March 2023 which, in summary, prohibits the publication (by any means, direct or indirect) of the names of, or any information that would identify, ST, the family of ST, the applicant Hospital Trust, the hospital(s) attended by ST, experts, treating clinicians and any health/care professional engaged with ST. That wide-ranging order was expressed to last “until further order of the court”. However, as the parents, who were acting in person, opposed the order, the judge provided that it should be considered at the next hearing. The judge also ordered that all future hearings should take place in public, but subject to the Transparency Order.
On 4 April 2023 the parents applied for discharge of the Transparency Order.
On 15 May 2023, by way of a consent order to which the parents had agreed through their legal representatives, the Transparency Order was varied by Judd J to last until 13 November 2023, or earlier order.
At no court hearing was the application to discharge the Transparency Order substantively considered until it came before me at this hearing. I have little doubt that the courts (myself included), when faced with complex and wide-ranging issues about capacity and best interests at hearings with limited court time, followed the usual practice of continuing the anonymisation at least until conclusion of the proceedings at which point fuller consideration could be given to the issue.
In considering the application I have read:
i) An extensive bundle including two witness statements of particular relevance to the application, one by ST's father and one by a critical care nurse manager employed by the Trust;
ii) Position statements on behalf of the parents, the Trust and ST through the Official Solicitor.
I have also had the benefit of oral submissions from counsel on behalf of the parents, and leading counsel on behalf of the Trust and ST.
In a sense, the issues between the parties are relatively limited, but nevertheless important:
i) It is agreed that the restrictions on identifying ST, her family and expert witnesses should be immediately lifted.
ii) In respect of identification of the Trust, the hospital(s) attended by ST, and clinical/nursing staff:
a) the family seek an immediate discharge of reporting restrictions;
b) the Trust proposes a continuation of such restrictions for 8 weeks from 22 nd September 2023, at which point the provisions shall stand automatically discharged;
c) the Official Solicitor is neutral;
d) two members of media organisations at my request addressed me informally (not being parties to the proceedings), and indicated that they support an immediate lifting of restrictions as to ST, her family and the Trust, but are neutral otherwise.
The background
The background is set out in the decision of Roberts J pursuant to a judgment handed down on 25 August 2023 and reported as A NHS Trust v ST and Ors [2023] EWCOP 40. That judgment should be taken as read.
ST at the time of the hearing before Roberts J was 19 years old. She had spent about a year as a patient in intensive care. She had a rare, progressive mitochondrial disease with a number of health problems including impaired sight, hearing loss, gait disorder, muscle weakness, bone disorder, kidney disease and lung damage. On 14 and 17 July 2023, ST had two episodes of hypoventilation, becoming unconscious and seriously ill. She stopped breathing. Her blood oxygen fell to dangerously low levels. She required lifesaving interventions.
The evidence of her treating clinicians was that she was “actively dying” with a life expectancy measured in weeks. They stated that there was no cure.
Court of Protection proceedings had started in February 2023 with a challenge to a Lasting Power of Attorney granted by ST on 20 November 2022. On 20 July 2023, the Trust applied for authorisation to move to a treatment plan of palliative care, involving a much less invasive treatment regime. Life-saving treatment would be withdrawn by removal of the dialysis, and there would be no further attempt to resuscitate in the event of a major respiratory arrest.
The application came before me on 26 July 2023. It became apparent that there was a substantial issue about ST's capacity to litigate and to make decisions about her medical treatment. ST herself was expressing opposition to the Trust's proposed care plan and withdrawal of treatment. She supported exploring experimental treatment potentially available in Canada, an option strongly advocated by her family, but which was considered by the Trust and the Official Solicitor on ST's behalf not to be realistic.
Accordingly, I gave directions for the capacity issue to be determined before any consideration of best interests. That issue came before Roberts J on 7 August 2023. Her decision was reached after careful consideration of the voluminous papers, hearing oral evidence from four medical witnesses, and hearing extensive submissions from expert legal teams. The judgment itself is comprehensive.
Roberts J concluded that ST did not have the relevant capacity. She accepted that ST was aware of the nature of the disease, that it was progressive, and that she was likely to die of it. But she determined that ST did not understand the precariousness of her position. ST did not believe the doctors who told her that she might have only have days or weeks to live. She was, on the judge's findings, unable to weigh the information because (as set out at para 86 of her judgment): “(a) she does not believe what her doctors are telling her about the trajectory of her disease and her likely life expectancy and (b) she does not fully comprehend or understand what may be involved in pursuing the alternative option of experimental nucleoside treatment”. The judge considered, as part of an assessment of capacity, that ST was not able understand properly the option of treatment in Canada: it was unlikely to provide ST with any material benefit, the trial itself had been paused, the journey would be extremely risky and there was considerable doubt about whether she would be eligible for it even if it was available.
The decision was about capacity only. It was not a determination of what was in ST's best interests in terms of medical treatment. The judge made clear that she was not authorising or approving the Trust's proposed treatment plan. That was for another day, but in the event, ST sadly died before the next hearing to make those decisions.
I am told that the family intend to appeal the order, notwithstanding the death of ST since then. They will contend that the capacity decision was wrong and should be reversed.
The law
The general position in the Court of Protection is that proceedings take place in private: COP rule 4.1(1).
The court has the power to direct that proceedings take place in public; COP rule 4.3(1).
The court has the power under COP rule 4.3(2) to make an order restricting of the identity of any party, P, any witness or any other person. Such an order should be made “only where it appears that there is good reason for making the order”: COP rule 4.4(1)(a).
COP PD4C at 2.1 provides that:
“The court will ordinarily (and so without any application being made)—
a) Make an order under rule 4.3(1)(a) that any attended hearing shall be in public; and
b) In the same order, impose restrictions under rule 4.3(2) in relation to the publication of information about the proceedings.”
Such orders are referred to as Transparency Orders. In practical terms, there is little difference between Transparency Orders and Reporting Restrictions Orders (“RROs”), and I tend, tentatively, to the view that it would be desirable to have uniform terminology.
When considering what Transparency Order to make, or whether to vary or discharge such an order, the court is required to balance Article 8 and Article 10 considerations.
In the recent case of Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331, the Court of Appeal considered two conjoined appeals (to which I...
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