This week, Barnsley Hospital NHS Foundation Trust has announced that a 34-year-old patient, known as ‘MSP’, has died in intensive care after having his life support removed.
The announcement follows a judgment last week which ruled that it was in his best interests to have his life support switched off, despite his last wishes stating that he wanted to receive the treatment needed to live.
Christian Concern is calling for an urgent public inquiry into the ‘secretive’ court which authorises withdrawal of life-saving treatment from NHS patients, appealing to the Justice Secretary, the Rt Hon. Robert Buckland to investigate.
The 34-year-old patient, known as ‘MSP’, had previously said he did not want to live with a permanent stoma, a surgical hole in the stomach to which a colostomy bag is attached to collect digestive waste. However, on 27 May, when faced with the prospect of losing his life, the patient changed his mind and said he did want the treatment to live ahead of an operation which left him in intensive care. Despite this, in a judgment handed down on 1 June, Mr Justice Hayden overruled the patient’s wishes, relying instead on statements which are legally invalid.
Document was legally invalid
MSP had developed a gastric ulcer and other gastroenterological problems in 2019 and had a temporary stoma bag fitted.
He told his parents and doctors that he “utterly loathed” it and that he would rather die.
As his condition developed, MSP wrote a document known as an ‘Advance Directive’ in February 2020, where he refused his consent to “the formation of a stoma… that is expected to be permanent or with likelihood of reversal of 50% of under” or any “requirement for ongoing medical treatment that will prevent me from living independently.”
He prepared the formal document but as Mr Justice Hayden acknowledged in last week’s court hearing, the document was not properly executed or witnessed, and is therefore legally invalid.
At MSP’s insistence, doctors removed his temporary stoma on 14 May.
Changed his mind and wanted to live
A few days later MSP had to be rushed back to hospital with severe abdominal pain and sepsis. ‘Dr M.’, the consultant gastroenterological surgeon on duty, told him that the only way to save his life was to fit a stoma bag immediately.
Faced with this choice, MSP chose to have the bag inserted during an operation, indicating that he had changed his mind and wanted to live. Justice Hayden himself recognised this in court last week when he said: “There is no doubt that MSP expressed his consent to the stoma being inserted.”
On 27 May, the stoma bag was urgently fitted during an operation leaving MSP in intensive care and heavily sedated, but with a good chance of survival.
Dr M.’s colleagues, who had treated MSP before, were surprised to learn of his change of heart. The hospital then made an urgent out-of-hours application to Mr Justice Hayden to determine whether that life-saving treatment was or was not in MSP’s best interests.
The application was supported by MSP’s parents, and an urgent hearing followed by Skype on 1 June which resulted in Mr Justice Hayden making the order to withdraw life support.
Judge previously ruled to withdraw life support
Mr Justice Hayden is best known for his controversial 2018 decision to withdraw life support from 1-year-old Alfie Evans, despite the opposition of his parents who wanted to fly him to an Italian hospital willing to provide treatment.
In an urgent letter to the Justice Secretary, Robert Buckland, the Christian Legal Centre (CLC) is urging the government to set up an urgent public inquiry to review the cases where doctors were ordered to switch off life support by the Court of Protection or the Family Division of the High Court.
The CLC has also written to the Official Solicitor, Sarah Castle – the Ministry of Justice official who was joined to the court proceedings to represent MSP’s interests – urging her to appeal the decision to the Court of Appeal.
Deep compassion needed
Andrea Williams, chief executive of Christian Concern, commented: “This case has come to the public’s attention and on the face of the judgment serious questions are raised and need to be answered. This is nothing short of a tragedy.
“It was clear from the evidence of the case that this was a young man who was struggling to come to grips with his illness, but who was also vulnerable and had a history of self-harming and bi-polar disorder. Despite that, when he was faced with the biggest existential crisis of his life, whether he should live or he should die, he chose life. Mr Justice Hayden admits that MSP was fully competent to give his consent to the procedure but chose to override that consent.
“When matters of life and death are at stake the system has to be transparent and subject to proper scrutiny. What is vital to understand in this case, is that the patient changed his mind when he was critically ill and faced with the prospect of dying.
“In such a situation, deep compassion should have been shown to MSP and his final expressed wishes needed to be taken seriously, especially if they were a plea to be saved and to live. This is why a Court of Appeal review of this decision by Mr Justice Hayden is clearly appropriate.
“It cannot be right that the law can give a judge absolute power to seemingly enforce his own ideas of whether it is in a patient’s best interest to live or die.
“This is made even worse when it is up to the same judge to say whether the patient lacks capacity to decide for himself. Taken together, this amounts to an unlimited power over anyone’s life and death. This is compounded by the secretiveness of the Court of Protection and Family Division proceedings.
“The Christian Legal Centre has made every effort to have the case reviewed, petitioning the appropriate authorities, including the Official Solicitor, to act with urgency to do so. MSP’s death is a devastating moment which should chill us all to the bone.”