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Life-sustaining treatment contrary to his best interests: Lessons from a supplementary hearing

Kitzinger, Jenny ORCID: 2021. Life-sustaining treatment contrary to his best interests: Lessons from a supplementary hearing. [Online]. Open Justice. Available at:

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The hearing I attended at the Court of Protection on 15th July 2021 (Case No. 1375980T before Mr Justice Hayden) was unusual in that it was described by the judge as a “supplementary hearing”. I’d not come across this type of hearing before, so was interested in the format and process as well as its substantive content. Supplementary hearings are uncommon and it was hard to find out much about how they operate. Although not formally defined (e.g. in a Practice Direction), a lawyer I approached for advice when writing this blog told me about a few other cases where a supplementary hearing had been held. The aim in each case was to pick up on the issues that were identified as important, but which didn’t need to be resolved to actually answer the question before the judge in the original hearing. Judgments from previous supplementary hearings address, for example: • the correct steps that should be taken to bring serious medical cases to court in a timely fashion (The Royal Bournemouth and Christchurch Hospital NHS Foundation Trust and Dorset Healthcare University NHS Foundation Trust v SE [2018] EWCOP 45). • guidance on how applications should be made where a treating Trust is concerned that a pregnant woman lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and postnatal care (NHS Trust & Ors v FG [2014] EWCOP 30). These cases are summarised by 39 Essex Chambers here and here. The supplementary hearing that I observed was prompted by what happened to GU – a severely brain-injured patient who had been sustained in an unconscious state for several years, despite assertions from family members (including wife, sister, brothers and several adult children) that this was not what he would have wanted – and despite his treating team apparently also not believing ongoing treatment to be in his best interests. The only area of 1 dispute was that one family member, the patient’s eldest son, had profound moral objections to withdrawing clinically assisted nutrition and hydration (CANH). The judge’s decision about this patient’s best interests was made back in June 2021. Mr Justice Hayden decided that CANH was not in GU’s best interests. After judgment, all life- sustaining treatment stopped and GU was allowed to die. (My blog about that case is here). The point of the supplementary hearing held in July 2021 was to examine why this patient had been treated contrary to his best interests for so long – and to look at how other patients might be protected from this happening to them. This seemed like an invaluable opportunity for the Court of Protection to address some of the underlying problems in this area. I was particularly interested to observe this supplementary hearing because this is a family I had supported to help them in getting this case to court. This is one of many families that we (my colleague and sister, Professor Celia Kitzinger, and I) have been involved with as part of our work with the Coma and Disorders of Consciousness Research Centre. We also often support families in best interests decision-making about CANH that often never get as far as court: see my blog here. I was also keen to watch the supplementary hearing because I’ve often felt frustrated watching cases that do get to court where it’s apparent that there’s been lots of delay (Kitzinger and Kitzinger, 2017), but judges invariably focus narrowly on the best interests of the individual patient going forward. This usually means that exploration of any past problems or ‘lessons learned’ have a relatively low profile.

Item Type: Website Content
Date Type: Publication
Status: Published
Schools: Journalism, Media and Culture
Subjects: H Social Sciences > H Social Sciences (General)
K Law > K Law (General)
R Medicine > R Medicine (General)
Publisher: Open Justice
Date of First Compliant Deposit: 3 December 2021
Last Modified: 10 Nov 2022 10:06

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