From Derek J.Cole M.A.
(Law), LL.B. (Cantab)
9 Anglesea Terrace, St
Leonards on Sea, TN38 0QS
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A dissertation on the
recent 'Do not resuscitate case' and its possible implications for
decision-making under R (Coughlan) v N & E Devon H.A. July,
1999, when the Court of Appeal ruled that those whose 'needs .are
primarily health needs' are entitled to 100% free care from the
NHS.
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Case No: CO/4038/2003
Neutral Citation Number: [2004] EWHC 1879 (Admin) IN THE HIGH COURT OF
JUSTICE
QUEENS
BENCH DIVISION ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2 Date: 30 July 2004
Before :THE HONOURABLE
MR JUSTICE MUNBY Between
:
R (On the Application of Oliver Leslie Burke
Claimant
and
The
General Medical Council
Defendant
And
The
Disability Rights Commission
Interested Party
And The
Official Solicitor for he Supreme Court Intervenor
Mr
Richard Gordon QC and Mr Clive Lewis (instructed
by Coningsbys) for the claimant
Ms
Dinah Rose (instructed
by Field Fisher Waterhouse) for the defendant
Mr
David Wolfe (instructed
by the Head of Legal Services) for the interested party
Mr
Robert Francis QC (instructed
by the Official Solicitor) for the intervener)
Commentary by
D.J.C.
Mr Richard Gordon Q.C.
wrote in 'Legal Action' in Aug 1999 immediately after the Coughlan
decision that a 'raft of cases' was needed to clarify the decision.
No further cases have reached the Court of Appeal so that nobody has the
faintest idea what the law on 'free care' actually is.
The most fundamental
right of the old and ill is the 'right to life' and large parts of the Burke
judgement have no relevance to the right to free care. However, the second most
important right is not to have home and 95% of the patient’s assets dispersed
unlawfully. Certain 'obita dicta' in 'Burke' seem relevant. Most cases involve
the loss of the family home and can involve huge sums of money. One of my cases
could amount to half a million and £100000 is common. Every decision to
refuse funding is a major quasi-judicial
decision.
In the quotations I give
below, I have excluded all words which refer to’right to life’ and put the usual
dots in place. In one or two cases I have substituted in italics words I submit
are implied by the judgement, showing the original words in
brackets.
Readers who feel I have
stretched things too far can check the original on
http://www.courtservice.gov.uk/judgmentsfiles/j2775/burke-v-gmc.htm
The following
sub-headings are from the judgement.
GMC Guidelines
to Doctors
QUOTE-
,
“Where significant
conflicts arise .........between the team and those close to the patient, and
the disagreement cannot be resolved after informal or independent review, you
should seek legal advice on whether it is necessary to apply to the court for a
ruling.”
In these circumstances,
as well as consulting the health care team and those close to the patient, you
must seek a second or expert opinion from a senior clinician (who might be from
another discipline such as nursing) who has experience of the patient’s
condition and who is not already directly involved in the
patient’s care. This will ensure that, in a decision of such sensitivity, the
patient's interests have been thoroughly considered, and will provide necessary
reassurance to those close to the patient and to the wider
public'.
I submit that the
above words apply equally to decisions on 'free care' in view of the huge sums
involved.
The
Litigation
QUOTE
(8)……
where there is disagreement between a competent patient, or relatives or carers
of an incompetent patient, ......., the disagreement should be resolved by
application to a court or, alternatively, .........should inform the patient or
relatives and carers and afford them sufficient time ..........to enable them to
take steps to secure their rights under Articles 2, 3 and 8.”
UNQUOTE
I
submit that the above words apply equally to decisions on 'free care' in view of
the huge sums involved (see Salesi
v. Italy (1993) 26 EHRR 187)
and
in view of the promises made to Parliament by Lord Hunt on 17th March, 2003
(below).
Judgement
“The
Court considers that the position of inferiority and powerlessness which is
typical of patients confined in psychiatric hospitals calls for increased
vigilance in reviewing whether the Convention has been complied with.”
UNQUOTE
I
submit that the above words apply equally to decisions on 'free care' in view of
the huge sums involved and extend to ALL ill, elderly and inform parienrs in all
hospitals..
70……….
In R (A, B, X and Y) v East Sussex CC and the Disability Rights Commission (No
2) [2003] EWHC 167 (Admin), ), (2003) 6 CCLR 194, having set out the passage
from Judge Greve’s opinion which I have just quoted I continued at para
[93]:
“This
brings out the enhanced degree of protection which may be called for when the
human dignity at stake is that of someone who is … so disabled as to be
critically dependent on the help of others for even the simplest and most basic
tasks of day to day living. In order to avoid discriminating against the
disabled … one may, as Judge Greve
recognised, need to treat the disabled differently precisely because their
situation is significantly different from that of the able-bodied. Moreover, the
positive obligation of the State to take reasonable and appropriate measures to
secure the rights of the disabled under article 8 of the Convention … and, in
particular, the positive obligation of the State to secure their essential human
dignity, calls for human empathy and humane concern as society, in Judge Greve’s
words, seeks to try to ameliorate and compensate for the disabilities faced by
persons in A and B’s situation (my emphasis).”
UNQUOTE
I
submit that the above words apply equally to decisions on 'free care' in view of
the huge sums involved. This is in total contrast to what frequently happens - a
Junior Social Worker says 'You have got money so you must pay'. I submit it is
the duty of Social Services actively to urge patients and families to consider
their rights under ‘Coughlan’.
QUOTE
72……….Very recently in her 2004 Paul Sieghart Memorial Lecture Baroness Hale of
Richmond made much the same point
“
… human dignity is all the more important for people whose freedom of action and
choice is curtailed, whether by law or by circumstances such as disability. The
Convention is a living instrument … We need to be able to use it to promote
respect for the inherent dignity of all human beings but especially those who
are most vulnerable to having that dignity ignored. In reality, the niceties and
technicalities with which we have to be involved in the courts should be less
important than the core values which underpin the whole
Convention.”
It
is the problem that I recently had to consider in HE v A Hospital NHS Trust
[2003] EWHC 1017 (Fam), [2003] 2 FLR 408. I summarised my conclusion at para
[46]:
“...........the
evidence must be scrutinised with especial care. Clear and convincing proof is
required. The continuing validity and applicability of the advance directive
must be clearly established by convincing and inherently reliable
evidence.”
The
third, which is in truth no more than the inevitable and logical corollary of
the other two, is that the decision ...........is not for the doctor: it is
........if ........the matter comes to court, for the judge.
“It
is, I think, important that there should not be a belief that what the doctor
says is the patient’s legal
right
(best interest) is the patient’s legal
right (best
interest). For my part I would certainly reserve to the court the ultimate power
and duty to review the doctor’s decision in the light of all the facts.”
UNQUOTE
I
submit that the above words apply equally to decisions on 'free care' in view of
the huge sums involved together with the forced sale of the family
home.
The
practical problem is that there are only a tiny number of ‘Do not rescuscitate’
cases so an applocation to a judge in each case is possible. In contrast, there
are about 40000 forced sales of homes each year. However patients and their
families are entitled to assert their rights and I am advising all my claimants
(I act ‘pro bono’) not to pay a penny until a further decision of the Court of
Appeal makes it clear that they must.
One
solution to this administrative problem is to make an appeal available from
Review Panels to the Appeal Service, which gives decisions on DLA and other
benefits and which complies with Article 6.
The promises made to
Parliament on 17th March, 2003 seem by implication o say the
Secretary of State agrees with what I am saying.
Lord Hunt (Health
Minister) promised that the Secretary of State would ‘issue directions to the NHS specifying that an assessment
for continuing care is to be carried out, that a record is made of the
assessment, and that the patient was informed of the right to ask for that
decision to be reviewed and the outcome of the
review’. (as confirmed by letter to Andrew Mackay M.P. from the then
Health Minister, Jacqui Smith, May,2003. My
underlining.)
Lord Hunt
also said 'the patient
will remain in hospital until the dispute about eligibility for continuing NHS
care has been resolved’. (House of Lords, 17th March, 2003). In
reliance on these promises, opposition amendments were
withdrawn.
RECOMMENDATION
Make
an appeal available from Review Panels to the Appeal Service, which gives
decisions on DLA and other benefits and which complies with Article
6.
Derek J.Cole
Hastings
6th Nov, 2004.