oct ewj 24 online - Flipbook - Page 10
What Does it Mean to be
an Expert in the Person?
The Court of Protection Decides
EIn University College London Hospitals NHS Foundation Trust v HER & Anor [2024]
EWCOP 25, Senior Judge Hilder had to consider what (if any) weight to place on the opinion
of P’s sister as to her condition and treatment. P, identified in the judgment as HER, was 53
years old, and living in a supported living placement. In her early childhood HER had a
stroke-like episode, which had a lasting effect on a large part of her brain. She was described as
also having learning difficulties and epilepsy. She had also been diagnosed as having a metabolic
disorder, OTC, giving rise to intermittent episodes of acute encephalopathy. HER was
experiencing epileptic seizures a few times a month, without warning, and giving rise to risk of
sudden unexpected death.
UCLH had a proposed treatment plan, to which
HER’s sister, identified as SR objected. A preliminary,
but important, point was as to whether SR’s evidence
about her sister’s condition and treatment was admissible. The Trust argued that it was simply inadmissible because it was opinion, and she was not qualified
to give such evidence. The Official Solicitor, on HER’s
behalf, argued that it was admissible, but that the court
should effectively accord it no weight.
weight is put upon such matters as she lacks expertise to opine
upon, at least she has been heard.
21. I therefore take the following very practical approach to
the issue of admissibility of SR’s evidence:
(a) in reality, both of SR’s statements were admitted as
evidence in these proceedings, and read by me, before any argument to the contrary was raised by the Trust; and I have
heard oral evidence from SR, without any contrary application by the Trust.
P’s sister, identified in the judgment as “SR,”
described herself as ‘an expert by experience’ […] and as “an
expert as regards HER” […]. She does not contend that she
is “a medical expert”. Rather she says that she has unrivalled
knowledge of HER, and HER’s experience of life and medical treatment (paragraph 13(d)).
(b) Therefore, I can only now consider the Trust’s argument
of inadmissibility as an application that, having already been
admitted, SR’s evidence should be disregarded in so far as it
ventures into matters of medical expertise.
(c) Without wishing to lose any of the respect intended in the term
“expert by experience”, I am clear that this is not the “expertise”
for which the Court looks in questions of medical diagnosis and
treatment. I do not regard SR as appropriately positioned to give
expert evidence about medical matters. In so far as SR’s evidence
crosses the line into matters which are properly the domain of
medical expertise, it can therefore be of no weight.
Senior Judge Hilder identified the expertise of the
treating clinicians (no independent medical evidence
had been directed. By contrast, she noted that:
18. […] SR is a devoted sister, who has obviously spent a
great deal of time and effort trying to educate herself about
HER’s condition. She has closely observed HER for pretty
much all of her life, and therefore has much to say by way of
describing HER’s reactions to treatment. However, she comes
to the issues before the Court as a technical lay-person. Her insight into the relevant medical science is limited to that which
can be picked up from publicly available documents – in her
evidence she has referred to consulting “Dr. Google” [239]. It
is untested by examination or qualification or professional discourse, unconstrained by ethical regulation, and uninformed
by practice. She is naturally not an objective observer but has
an emotional investment in HER.
(d) Looking at it in the round, I regard SR’s evidence as the
attempt of an intelligent non-expert to understand what is
being done for and to her much loved sister. In so far as SR’s
evidence expresses her observations of HER’s experience of or
reaction to medical treatment to date, I shall consider it as
evidence of fact.
As to the substance of the decision before her, Senior
Judge Hilder identified that:
36. The treatment which SR proposes is not being offered by
the Trust. It is therefore not an option which HER could
choose for herself if she had capacity to do so, and so not an
option before the Court. This Court cannot compel clinicians
to give a course of treatment against their own professional
judgment. So, to be clear, the decision which I have to make
in these proceedings is not whether I prefer the Trust’s treatment plan or SR’s. It is more narrow than that – namely,
whether I am satisfied that the Trust’s treatment plan is in
HER’s best interests, taking into consideration SR’s views
about it.
As Senior Judge Hilder noted, there was in reality
little difference as to the practical evidential effect of
the approaches taken by the Trust and by the Official
Solicitor. However, she continued:
20. There does however seem to me to be a significant
difference in how SR is likely to experience the fairness of litigation. If her evidence is excluded, it is as if she had never articulated her position to the Court. If it is admitted but no
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