Faith, Medicine and Conflict in the Court of Protection: A case study of RS
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Almost all hearings in the Court of Protection are open to members of the public who want to observe them: that's been so since 2016. The move to remote hearings (via telephone or video-link) since the beginning of the public health emergency has provided unprecedented access. I am co-founder of the Open Justice Court of Protection Project and will begin my talk with a practical account of how to access hearings, and the value of doing so for those interested in medical law and ethics.
One of the recent cases I observed concerns RS, a middle-aged Polish man in a prolonged vegetative state (see my blog for links to judgments). RS's treating clinicians and his wife believed that continuing medical treatment (specifically, mechanical ventilation and clinically assisted nutrition and hydration) was no longer in his best interests. His 'birth family' (mother, sisters, niece) disagreed. After hearing the evidence as to RS's own likely wishes (he was Catholic), Mr Justice Cohen authorised treatment withdrawal.
A series of hearings followed as the birth family (supported by the Christian Legal Centre) sought to challenge this decision in the Court of Appeal and in the ECtHR (applications were refused) and succeeded in getting the case re-heard via a challenge to RS's diagnosis and prognosis. They also (unsuccessfully) sought permission for RS to be moved to Poland where his treatment could continue.
I will raise for discussion some of the ethical issues involved in this case, some of which have resonances with those in other cases in the Family Courts (e.g. Tafida Raqeeb, Alfie Evans) - with the reminder that decisions in the Court of Protection are always heavily 'fact-specific'. Issues include: transparency and confidentiality (e.g. here), determining patient's faith-based views, decision-making about 'futile' treatment(here), the objectivity of expert evidence (here), and the mobilisation of public opinion via patient videos on social media (here).
Watching court hearings during which these issues unfold, in real time, provides a very different, more 'granular' perspective compared with reading judgments - which tidy up the logic of the decision-making process, and sometimes obscure the arguments used in court that failed, the 'facts' that had to be corrected, the emotions displayed, the dead-end approaches tried and abandoned. Medical law and ethics must deal with the complex and messy reality of hands-on decision-making in this real-life context.
A blog by professor Kitzinger on this topic may be found here.