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Official Solicitor takes part for first time in hearing of out of hours application in serious medical treatment case

The Official Solicitor has for the first time taken part in the hearing of an urgent out of hours application in a serious medical treatment case.

The proceedings in Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26 concerned MSP, a 34-year-old man with a complicated abdominal history which has caused him to have significant gastrointestinal problems for approximately 10 years. He is currently sedated and ventilated in intensive care after major surgery, lacking capacity.

Barnsley Hospital NHS Foundation Trust had made the application on the evening of 29 May 2020. It was received by Mr Justice Hayden, Vice-President of the Court of Protection, who was on duty as the Out of Hours Judge.

The issue framed in the application was whether the Trust should continue to provide ITU support or withdraw treatment other than palliative care.

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Mr Justice Hayden said: “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.”

The judge said he wished to express his 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.”

MSP had made a “carefully crafted” advance directive, which amongst other things expressed his rejection of a permanent stoma, but there were procedural deficiencies with it, for example, the signature was not witnessed by a second person as required, the judge said.

In his evaluation of MSP’s best interests, the judge said: “The preponderant evidence points strongly to MSP not wishing to live with a stoma or, as he puts it, with any "ongoing medical treatment that will prevent me from living independently, either long term or indefinitely". Whilst this document is not binding as an Advance Decision, it nonetheless represents a clear and eloquent expression of MSP's wishes and feelings.

“Nor, as I have stated above, does it stand alone. It is reinforced by the choate and consistent evidence of MSP's parents, his step-sister (communicated via the parents) and the clear evidence of three consultants, each of whom was left with no doubt at all that MSP would not want to live either with the stoma or TPN and that the combination of both would be unbearable for him.”

The judge noted that there was a real prospect that MSP would survive ventilation, with doctors suggesting that the prospects of that being somewhere between 60 to 70 percent.

Approving the move to palliative care, which he said would accord with MSP’s wishes and feelings, Mr Justice Hayden said: “MSP has endured a decade of serious ill health. The quality of his life and his mobility has desperately reduced. His confidence and self-esteem has been adversely impacted. His capacity to forge and maintain interpersonal relationships has been significantly eroded. He has made a practical, utilitarian calculation that life in these circumstances is not what he wants.

“In a real sense this is not a case about choosing to die, it is about an adult's capacity to shape and control the end of his life. This is an important facet of personal autonomy which requires to be guarded every bit as jealously for the incapacitous as for the capacitous.”

Bridget Dolan QC of Serjeants’ Inn Chambers, who acted for the NHS Trust , said this “profoundly sad case that reaffirms the principle of autonomy and also sends a clear message to all of us who might want to decide for ourselves whether life-sustaining  treatment should  be given to us on losing capacity:  Make sure your advanced decision is signed and witnessed if you wish to avoid unwanted medical treatment and litigation.”

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