Mostyn J hears trial concerning withdrawal of life sustaining treatment with five parties and at least 20 participants over Skype for Business  (REVISED POST)*

In December 2019, Keehan J presided over a directions hearing in a serious medical treatment application brought by a CCG.  A dispute had arisen as to whether or not it was in the best interests of A, a man in his 70s who suffered a stroke in 2016, to continue to receive clinically assisted nutrition and hydration (CANH).  A’s daughter believes CANH should be removed; his GP thinks it should stay in place. A is not in a prolonged disorder of consciousness: despite significant impairment, he communicates with those caring for him in gestures and occasional words, and enjoys seeing animals and children, and hearing poetry.

In itself, this would be an unusually difficult and sensitive case for the Court of Protection, and Keehan J listed it for four days, including a day of judicial reading time.  As preparation progressed, it became clear that it was going to be a tight timetable. Between them, the five parties (CCG, A, represented by the Official Solicitor, A’s daughter, A’s GP, and the local authority) were calling eleven witnesses to give oral evidence, including three independent expert consultants; all five parties would be making closing submissions; and the evidence available to the court ran to well over 4000 pages.  What makes this case even more unusual is that the judge listed it to start on Tuesday 17 March 2020, less than 24 hours after the nation was directed to avoid all non-essential contact to stem the rising tide of Covid19.

Read more about this case on our UK Medical Decision Law Blog.

At a hearing before the Professional Conduct Committee of the GDC, Mr A, a general dental practitioner, faced an allegation that his fitness to practise was impaired by reason of misconduct consisting of alleged dishonesty and multiple clinical failures over a number of years. The clinical failures were admitted and the dishonesty allegations, which were denied, were found not proved. Having regard to the extensive evidence of remediation in relation to the clinical failures, which were deemed to constitute misconduct, the Committee held that Mr A’s fitness to practise was not impaired. Mr A was represented by Andrew Hockton, instructed by Joanna Flowers of the MPS.

Evidence is emerging of the risks posed to prisoners of Coronavirus. Hannah Hinton argued in a Romanian prison conditions case before Mrs Justice Styen that individuals facing extradition during the crisis were at extra risk. In that case there was evidence that a detainee at Bacau prison had a suspected case of coronavirus and he was evacuated from the prison and the Court where he had visited was temporarily shut down. It transpired he did not have the virus and there was therefore no arguable basis for refusing extradition on that point but the situation is such that it should be kept under review as a potential basis for a postponement of extradition.

A Healthcare and B NHS Trust  v CC (by his litigation friend, the Official Solicitor) [2020] EWHC 574 (Fam), Lieven J

Emma Sutton was jointly instructed by the applicants in a complex case concerning CC, who had diagnoses of psychotic depression and a mixed personality disorder who was detained under section 3 MHA 1983. CC was also deaf, had type 1 diabetes, and suffered complex physical health issues caused by chronically poor compliance with the required diabetic treatment, including renal failure. The court had to consider the interplay between the MHA 1983 and the MCA 2005 and determine whether, and if so, how dialysis could and should be lawfully given due to CC’s refusal. CC would die within 6 weeks without the necessary treatment. The court agreed with the primary argument that CC’s refusal of dialysis was a manifestation of his mental disorder and that he could be treated under section 63 MHA 1983. Please see here for the judgment.

The full findings of the court at [56] were that:

i. he physical condition CC is now in, by which dialysis is critical to keep him alive, is properly described as a manifestation of his mental disorder. There is a very real prospect that if he was not mentally ill he would self-care in a way that would have not led to the need for dialysis. Further, CC’s refusal of dialysis is very obviously a manifestation of his mental disorder and dialysis treatment is therefore treatment within the scope of section 63 MHA 1983.

ii. CC’s capacity to consent to dialysis treatment fluctuates, however his consent is not required in order to be treated, by way of dialysis treatment, under section 63 MHA 1983.

iii. The decision whether it is in CC’s best interests to receive dialysis treatment is a matter for CC’s responsible clinician (having consulted clinicians attending to his physical health, including the consultant nephrologist), subject to the supervisory jurisdiction of the Court.

iv. Section 58 has no applicability. Section 62 disapplies section 58 in urgent treatment cases such as this where treatment is immediately necessary to save CC’s life, to prevent a serious deterioration of his condition, and to alleviate serious suffering. Section 63 is the appropriate course.

v. As section 63 MHA 1983 can be used as authority to provide medical treatment to CC, including by dialysis treatment and by the use of light physical restraint and chemical restraint (if required), it is unnecessary for the court to exercise its discretion and make a contingent declaration pursuant to section 15(1)(c) MCA 2005 that it is lawful to treat CC in accordance with the proposed dialysis treatment plan in the event that he lacks capacity to make a decision regarding dialysis treatment at the relevant time.

Emma was instructed by Stuart Wallace, in-house lawyer at A Healthcare, and Nadine Mansell, solicitor at Capsticks Solicitors LLP for B NHS Trust.

Following a week-long inquest in Pontypridd, Wales, a jury have returned the rare and serious conclusion of ‘natural causes contributed to by neglect’ in respect of the tragic death of a baby, Lewys Crawford. Anthony Searle represented Lewys’ family and was instructed by Rebecca Mather of Hugh James.

At just 13 weeks old, Lewys presented to A&E with signs of sepsis. Neither a Consultant in Emergency Medicine nor a Paediatric Registrar recognised how ill Lewys was. Broad-spectrum antibiotics should have been commenced within an hour of initial assessment pursuant to the NICE guideline, Sepsis: recognition, diagnosis and early management. Expert evidence established that this basic treatment would have saved Lewys’ life. However, antibiotics were not commenced for over 6 hours, by which point Lewys had deteriorated significantly. He sadly died of meningococcal septicaemia.

Anthony’s robust questioning led to a number of admissions from the healthcare professionals involved. As a result, following legal argument, Anthony successfully persuaded the Senior Coroner to leave the finding of neglect to the jury.

Prior to the inquest, the Senior Coroner also accepted Anthony’s submission that, despite being a medical inquest, there were arguable systemic failures sufficient to engage Article 2 of the ECHR. Whilst the Senior Coroner decided by the end of the inquest that Article 2 was no longer engaged, his preliminary ruling allowed a number of important wider issues to be investigated.

The inquest received a significant amount of media attention over the course of the week, with numerous articles on BBC News, ITV News, Metro, The Sun, WalesOnline and the Birmingham Mail.

Anthony is a specialist in clinical negligence and healthcare-related inquests. He accepts instructions from families, public bodies and medical defence organisations.

Hannah Hinton, instructed by Jeremy Nicholls of Birds Solicitors successfully represented a 22 year old male who was wanted by Hungary to stand trial for three offences of destroying property by way of fire and two attempted offences of arson. He was facing a sentence of 8 years imprisonment. Hannah argued that as these offences were committed when he was 16 years old and he was then a first time offender, if he were sentenced in England and Wales the Court would have inevitably imposed a referral order (a non custodial sentence). She also countered the argument that he was a fugitive from justice by explaining he came to this country as a victim of trafficking. He had been promised work but he was exploited when he came to the UK. He managed to free himself by initially becoming homeless and later he found lawful employment and established a life for himself with a partner and her son from a previous relationship.

The team pursued other arguments in the case including Hungarian prison conditions under Article 3 ECHR, noting the Supreme Court is currently considering the following certified question at the permission stage: “Where a Court is obliged to assess an assurance given to the United Kingdom relevant to extradition, is it correct that the Court should exercise very considerable caution before admitting evidence which does not relate to an alleged breach of assurance to another EU member state? If yes, is it a correct approach that the Court should satisfy itself that such evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the decision in question?”

A District Judge discharged her client under Section 21A(3) on Article 8 ECHR grounds.

At 6.50 am on 10 February 2020 Matt Hancock signed off the Health Protection (Coronavirus) Regulations 2020, SI 2020/129. The press reported that the urgent need for the regulations was that some people subject to quarantine by agreement had said they could see little point in the process and intended to leave.  I suggested when I last wrote about quarantine (see our UK Healthcare Law Blog) that the lack of an enforcement power made contractual agreement a shaky basis for detaining hundreds of people for 14 days.

The Secretary of State has now put in place a raft of coercive powers, including a power to hold people in isolation and for a constable to take someone back to isolation – using reasonable force – and to enter premises to enforce the regulations.  This note summarises those powers.

The new regulations create additional powers to control people who may have coronavirus where the Secretary of State declares that the transmission of coronavirus is a “serious and imminent threat to public health” by way of a notice on the gov.uk website – gone are the old days of publishing notices in the Official Gazette.  At the same time as making the regulations the Secretary of State declared that such a threat existed, and that, for the purposes of exercising these powers, Wuhan and Hubei province were “infected areas” and that Arowe Park and Kents Hill Park hospitals were “isolation facilities”.

The powers apply where either condition A or condition B is met.  Condition A is that the Secretary of State or a public health consultant believes that a person (P) may be infected with coronavirus and there is a risk that P might infect others.  Condition B is that P has arrived in England on a ship, aircraft or train and has left an “infected area” (ie Wuhan or Hubei province) in the previous 14 days.  The regulations allow restrictions to be imposed by decisions, applying to individuals or groups, where certain defined circumstances arise.

The regulations give the Secretary of State the power to impose “screening requirements” (reg 6), obliging P to give samples, produce documents and answer questions.  Regulation 4 gives a power to detain a person for 48 hours or while this screening takes place.  Regulation 7 creates a power to restrict P’s travel and other activities and P’s contact with specified people where “necessary and proportionate” to reduce the risk of P infecting others.

What about quarantine?  The regulations deal with both “detaining” someone and “isolating” them.  Regulations 5 and 8 allow the Secretary of State or a public health consultant to impose “any other restriction or requirement” on P – including being held in isolation – which is necessary and proportionate for the purpose of reducing or removing the risk of the spread of coronavirus.  Restrictions can be imposed on groups and not just on individuals (reg 10) – so an entire plane or ship load of passengers could be covered by an order.

There are significant police powers.  As you would expect there is a power for a constable to return someone to detention or isolation by using reasonable force (reg 13).  Notably there is also a power for a constable to “remove someone to a hospital” and to enter any premises in order to do so on the basis of reasonable suspicion that the person may be infected with coronavirus.  The press has pointed out that – if used to their full extent –  these powers are extensive and could see people forcibly carried off for screening, even with no medical assessment that they were ill or a risk to others.  When doing this the police officer must have regard to any guidance published by Public Health England (reg 14(5)(b)).  Police forces will be concerned about the training required for officers both to use the powers lawfully and to reduce their own risk of infection – it is, after all, a respiratory infection, and therefore relatively easy to transmit.

A number of offences of non-cooperation are created, punishable by fines.  People subject to restrictions are given various procedural rights, including the right to challenge their detention by appeal to a magistrates’ court.  This is presumably included with articles 5(4) and 6 of the European Convention in mind.  The Act empowers the creation of offences and of appeal rights, section 45F.

The regulations are made under the Public Health (Control of Disease) Act 1984, sections 45B and 45C.  The Act does envisage quarantine as a possible result of regulations under section 45B but that section only applies to preventing danger from ships, planes and trains arriving in the country and to implementing international agreements.  As section 45B does envisage quarantine (see s.45B(2)(b)) it might be the basis of the regulations so far as they apply to people currently detained on returning from Wuhan.

However, what about people possibly infected in the UK and so not obviously covered by s.45B?  The position on imposing quarantine under s.45C is less clear.  Section 45D(3) expressly excludes from regulations under s.45C a requirement that “P be kept in isolation or quarantine”.  It seems likely that the regulations rely on the distinction in s.45(5) between actually imposing quarantine and enabling a decision which imposes quarantine – the regulations allow quarantine to be imposed and do not directly impose it.  On that basis the regulations give the power to quarantine in respect of coronavirus without individual applications having to be made to magistrates.

Let us all hope that we will not have to discover too much about how these regulations operate in practice.