ANYONE still sufficiently deluded to think, post Lucy Letby, that the NHS is such a wonderful institution that it merits a George Cross, honouring at a coronation, pride of place at an Olympics opening ceremony or simply standing on one’s doorstep and worshipfully banging a pan like a wind-up monkey week after week while the elderly choke to death in care homes, ought perhaps to consider two other recent court cases.
The first was held in secret, in the ever-so-shadowy Court of Protection, which, justifying its name, has so far done a marvellous job of protecting the NHS, if not patients.
It concerns the case of a 19-year-old named only as ST because of restrictions imposed by the court. Nor are the media permitted by the court to name the hospital trust where this unfortunate young woman is being treated, or any of the doctors caring for her.
Her family has also been ‘cruelly gagged’, according to her parents, who say they are forbidden from appealing publicly even for prayers as well as for any other help ‘which she desperately needs’. They complain that such restrictions ‘are literally killing her’.
The patient is ‘alert and conscious’ and also wants to be heard and now the Court of Protection has silenced her too. On what grounds? Because she disagrees with a plan by doctors to move her from an intensive care unit to palliative care.
Since a respiratory attack last year while suffering from Covid-19, the A-level student has been entirely dependent on a ventilator to breathe, a tube to receive nutrition, and a dialysis machine, and because she has a progressive mitochondrial illness doctors do not believe she can improve.
Palliative care is often a good thing but in this instance it can rightly be called a ‘death pathway’ because its primary purpose is to kill ST by sedating her then stopping her dialysis, resulting in death from kidney failure within days.
ST doesn’t want to die like that and has instructed her lawyers to oppose the plan and to try to obtain permission for her to go to the United States or Canada to take part in clinical trials for experimental treatment which might give her a chance of survival.
She told a psychiatrist who examined her: ‘This is my wish. I want to die trying to live. We have to try everything.’
Most people would see her wish as reasonable, but not Mrs Justice Roberts, who ruled that ST is ‘unable to make a decision for herself in relation to her future medical treatment . . . because she does not believe the information she has been given by her doctors’. She concluded: ‘I find on the balance of probabilities that ST’s complete inability to accept the medical reality of her position, or to contemplate the possibility that her doctors may be giving her accurate information, is likely to be the result of an impairment of, or a disturbance in the functioning of, her mind or brain.’
Oddly, the judge also accepted that ST does not suffer from any recognised psychiatric or psychological illness, and none of the doctors who have interacted with ST or treated her has claimed that her condition has affected her brain.
It would seem that to Mrs Justice Roberts, ST’s disagreement with doctors who want to kill her demonstrates a lack of mental capacity, and consequently the judge has stripped the teenager of her legal right to defend herself.
The upshot is that when the Court of Protection convenes to hear the application to move ST on to a death pathway, the patient will not be able to make her case. She will not be represented by lawyers of her choice, instructed by her, but by the Official Solicitor of the state. If this case were to have happened, say, behind the Iron Curtain, one might have sniffed a stitch-up. But Britain is a free and democratic society, right?
Or is Professor David Jones of the Oxford-based Anscombe Bioethics Centre more on the ball with his observation that the ruling represents a ‘perilous step’ toward a ‘lethal form of paternalism’?
‘In this case, a vulnerable patient’s disagreement with her doctors is being used against her as a means not only to take away her voice but further to deny her the right to litigate against the decision to take away her voice,’ he said. ‘Most disturbingly of all, her wish to continue to receive life-sustaining treatment, such as dialysis, is not only being ignored, but that very wish is being seen as a reason to deny her dignity as a mentally capable adult.’
This case is a stark example of how difficult cases can make extremely bad law, and is all the more disturbing and dangerous for being wrapped in secrecy. Are we really being told that our doctors and nurses are so perfect and beyond reproach that their decisions can never be either contested or questioned in public, and that to disagree with them is a symptom of an afflicted mind?
Open justice and trial by jury are bulwarks of a free society, but judges making life-and-death decisions in secret courts in which patients are stripped of their right to defend themselves is not justice.
The second recent case would suggest that to question some medical decisions is wise and shrewd, and to drag them into the light of public scrutiny is precisely the right thing to do.
It involves the trial presently under way at Preston Crown Court of two nurses who worked in the stroke unit at the Blackpool Victoria Hospital, and who are being prosecuted for allegedly ill-treating patients in their care.
Catherine Hudson, 54, and Charlotte Wilmot, 48, allegedly drugged patients for their ‘own amusement’ and for an ‘easy life’, targeting them especially if they disliked them or their relatives.
In texts read out in court Hudson allegedly wrote: ‘I sedated one of them to within an inch of her life lol. Bet she’s flat for a week haha xxx.’
‘What a lovely day I have had in blue bay today,’ she said in another. ‘Sedated all the troublemakers lol xxx.’
In a third she said she was going to ‘kill bed 5’ and planned to give one patient ‘the best sleep she ever had’.
Wilmot replied: ‘Pmsl [p****** myself laughing] well tonight sedate him to high heaven lol xxx.’
Hudson said: ‘Already in my head to give him double!!’
Later Hudson wrote: ‘I’ve just sedated him lol he was gearing up to start (laughing emoji) xxx’.
Wilmot said: ‘Pmsl (tablet emoji) praise the lord Xxx’.
Hudson wrote: ‘What’s bed 29 been doing today pmsfl. Not a f***ing lot I bet!! Seeing as I sedated her on sat and sun lol lol xxx.’
Wilmot replied: ‘Yeahhhh I knew it, everything you gave her has started working today!!!! Made for a nice day though, it ain’t been bad lol. Xxx.’
Hudson wrote: ‘She was driving me mad, so it was pxd [prescribed] and had to b done lol. She needed the rest xxx.’
Of course, it is up to the jury to decide whether the pair are guilty.