The following was received by Robin from Derek Cole on 18th November 2004:

The following is my opinion, which I am asking many MPs to take up with Dr Ladyman.
 
We are also adding to complaints to the Ombudsman that it was maladministration not to provide a Tribunal compliant with Article 6.
 
 

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'.

UNQUOTE

 I submit that the above words apply equally to decisions on 'free care' in view of the huge sums involved.

 The Litigation

QUOTE

21.              The claimant issued his application for permission to apply for judicial review on 19 August 2003. Permission was granted on 23 October 2003 by Mitting J, who directed that the Official Solicitor should be invited to intervene and that if possible the case should be heard by a nominated Family Division Judge. The Official Solicitor acceded to that invitation. The Disability Rights Commission (DRC) had already been served as an interested party.

I submit that the Secretary of State, who in fact took no significant action at all until the Ombudsman reported on 20th Feb, 2003, should in 1999 have facilitated similar proceedings, especially in the light of Richard Gordon Q.C.'s comments. to clarify the law.

 

Relief sought by the claimant

 

QUOTE (b)….. a patient is entitled to have the question .............resolved by a court or tribunal in accordance with Article 6(1);

(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

QUOTE 67……… The final point is very important and it relates to the enhanced degree of protection, and the increased vigilance in reviewing whether the Convention has been complied with, which is called for in the case of the vulnerable. I can start with what the Strasbourg court said in Herczegfalvy v Austria (1992) 15 EHRR 437 at para [82]:

“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.