oct ewj 24 online - Flipbook - Page 11
37, I accept the medical expertise of both Professor Walker
and Dr. Murphy. They both struck me as diligent, careful witnesses. I note that, notwithstanding that they come to HER’s
treatment from differing specialisms, conscious that the approaches of one impact on the concerns of the other, they are in
full agreement with each other as to how to treat HER’s
complex condition.
a. the ordinary mechanisms which the Trust has for
arranging appointments on that basis – as demonstrated in the
plan it will be adopting for matters beyond these proceedings;
and
b. SR’s own assurances to the Court that of course she will
abide by the decision of the Court; and
c. the views of HER’s own representatives that injunctions are
not necessary.
38. I also note that Professor Walker’s description, at [192],
that he “specialises in complex epilepsy within a large multidisciplinary group (one of the largest world-wide)…..
[HER’s] case will be discussed at our multi-disciplinary team
meeting where other neurology consultants specialising in
epilepsy (usually 5-8), neuropsychiatrists, neuropsychologists
and neurosurgeons can all give their opinion about further
treatment options.” This team approach is reassurance
against any concern – which in any event I am satisfied is not
remotely made out – that clinicians are somehow motivated by
personal interests as opposed to HER’s welfare.
In similar vein, Senior Judge Hilder also declined to
grant an injunction to prevent SR from discussing
relevant treatment with HER. She noted that she
regarded it
62. […] as very serious that SR has – she accepts – deliberately tried to ‘frighten’ HER about her treatment plans – or,
more accurately, what SR fears may become her treatment
plans. [246] SR accepts that she told HER “there was a
chance that she would be left with a permanently hoarse voice,
which would seriously impact her ability to sing.” I understand why the Trust seeks the serious measure of injunctions to
prevent it from happening again.
39. I do not doubt that SR is genuinely motivated by concern
for her sister’s wellbeing but I do not accept that SR’s observations of HER over time are sufficient to cast any real doubt
on HER’s diagnosis, or on the treatment plans of the clinicians
who bear responsibility for her care. Where SR’s observations
are at odds with the clinicians’ informed medical views, I prefer the evidence of the clinicians, who are qualified and widely
experienced in the relevant medical science. I am concerned
that SR’s approach pays too little regard to risk, in pursuit of
an agenda which is driven in part at least by historical
grievance rather than objective current evaluation. I am concerned that her characterisation of HER’s experience in the
care of treating clinicians so far is markedly different to the independent observation of HER’s own representatives that, actually, HER is experiencing a good quality of life, happy and
settled in her care arrangements.
63. However, I am also mindful that there are – presently – no
restrictions on contact between SR and HER. As Mr. Cisneros
points out, in those circumstances, practical enforceability of
court-imposed prohibitions must be questionable. In reality, the
more effective control would be in respect of contact arrangements. (No one asks the Court to take such steps at present.)
64. More positively, SR herself has now acknowledged that,
even in her own desperation, deliberately trying to frighten
HER into refusing treatment was not an appropriate thing to
do. In my view, that acknowledgment is the best hope that she
will not behave in such a way again.
65. At this point, I do not consider it proportionate or appropriate to impose this second requested injunction either. I accept SR’s assertion, repeated several times during the hearing,
that of course she will abide by the order of the Court. She
should have an opportunity to be as good as her word. If she
is, then she has nothing to fear from further court proceedings. If she proves not to be, then the Court can reconsider the
position in the light of circumstances at the time.
40. I have regard to the support of HER’s own representatives
for the plan which is proposed by her treating clinicians, and
the evidence that, whilst she lacks capacity to understand it, she
is compliant with and undistressed by her treatment regime.
Senior Judge Hilder ultimately had little hesitation in
finding that the treatment plan proposed by the Trust
was in HER’s best interests, although she clarified that
she was not endorsing brain surgery (which might potentially be on the cards depending upon the investigations the Trust wished to carry out) – stating
“categorically” at paragraph 69 that further proceedings would be required in that event.
SR had raised the possibility of being appointed a welfare deputy (but no formal application was before the
court). At paragraph 67, Senior Judge Hilder made
clear that this was a non-starter:
a. in these proceedings, the Court has determined the welfare
issue, so there is no need for appointment of a welfare deputy;
Senior Judge Hilder also went on to find that for SR
to attend certain appointments “would be likely to be
unhelpful, even actually harmful to HER in that it
would prevent the appointment from being conducted in the best way possible. I am satisfied that it is
in HER’s best interests that SR does NOT attend these
appointments. It would be helpful if [Tm] and/or [Tl]
were able to accompany her instead” (paragraph 52).
b. should circumstances so change that welfare deputyship is
a plausible need, it is unlikely – on the basis of experience to
date – that SR could be considered sufficiently neutral and
objective in matters of HER’s welfare to be an appropriate
candidate.
In a postscript, Senior Judge Hilder noted that:
72, Following the delivery of this judgement, SR asked
whether she would be entitled to copies of HER’s medical
records. I considered this and, consistent with my decisions set
out above, concluded that it would not be in HER’s best interests for SR to be provided with copies of HER’s medical
records, unless HER’s treating clinicians consider that such
disclosure is in HER’s best interests.
The Trust invited the court to go further and make
injunctive orders preventing SR from attending or attempting to attend the appointments. Whilst she was
clear she had the jurisdiction to grant such injunctions,
Senior Judge Hilder declined to do so, having regard
to:
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