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Conflict and the courts: lessons from recent case law on conflict between professionals and families

by Dr Jaime Lindsey, Associate Professor in Law, University of Reading

Conflict between healthcare professionals (HCPs), patients and families has had a relatively high profile following several reported cases reaching the courts over the past ten years. In this post we look at some more recent developments from the courts to consider what professionals working in health and social care might be able to learn from these cases, highlighting:

1. the need to involve parents and families (and patients where possible) throughout the process
2. the use of alternative methods of resolution of conflict where possible
3. the need to apply to the court as soon as possible where ensuring the patient’s best interests requires it.

1.  Involve parents, families and patients throughout

Research indicates that people are more accepting of decisions made about them and their lives if they have had an opportunity to participate in those decisions. This is in addition to the many principled arguments in favour of securing the participation of people who will be impacted by decisions. Judicial comments reflect this, emphasising the need to involve patients and families in healthcare decision-making. While this may seem obvious to most professionals, recent cases have highlighted that this is not always done effectively or consistently. One recent case, GOSH v MX & FX & X [2020] involved a 9-year-old child with haemolytic uraemic syndrome affecting kidney function, renal disease, chronic lung disease, and intestinal failure. The Trust made an application to the court to withhold interventions and provide only palliative care and to require that there would be no readmission to PICU for intensive care support. The child’s parents opposed the application initially, although following mediation, they agreed that it was not in the child’s best interests to be provided with a range of interventions, but the dispute remained regarding the provision of oxygen and admission to the PICU

Importantly, we see in this case that the judge was critical of the Clinical Ethics Committee (CEC) process for not involving the parents, which was described as ‘unacceptable’ (para 22). Mediation, on the other hand, did take place and was discussed in the judgment as being imperative ‘…both to assist in narrowing the issues to be decided, and to reduce the levels of distress for this family’ (para 59). The mediation process was quite different from the CEC, being attended by X’s treating clinicians and her parents. The court talked in positive terms about the mediation process as allowing the patient’s parents to ‘voice their concerns’. 

The courts have also emphasised the importance of involving the patient themselves and trying to ascertain their own views; for example, see the discussion in relation to a seriously unwell 14-year-old in Alder Hey Children’s NHS Foundation Trust v D, E & C [2023].

2. Courts encourage alternative dispute resolution, even in medical cases

Most disagreements about medical treatment are resolved through informal, direct discussions between families, patients, and HCPs. Such discussions build on the everyday communications that take place and are part of the relationship of trust that HCPs aim to build with families. Where such discussions don’t resolve the key issue in disagreement, courts are open to parties using alternatives to litigation, whether that be mediation, CECs or getting second opinions. For example, in GOSH v MX discussed above, the court acknowledged a range of pre-court processes having taken place, which were appropriate in the circumstances. Indeed, in that case the court initially encouraged the parties to use mediation.

Given the stress involved in going to court, particularly for families, the desire to attempt a resolution through more informal and less adversarial means is understandable. It is often argued that such alternatives might bring benefits beyond resolution of the issue in dispute, such as better communication and stronger relationships between HCPs and patients and their families. However, the difficulty arises where these other forms of dispute resolution lead to a delay in resolution in ways which might undermine the patient’s best interests, as we see below. It is important to consider the range of tools available to resolve the dispute while bearing in mind that these can be attempted alongside preparing for or applying to court.

3. Apply to the courts early where best interests is being undermined

Where the courts start to raise concerns about the use of alternatives to litigation is when they think delay would or does undermine the patient’s best interests. For example, in Imperial College Healthcare An NHS Trust v MB & Ors [2019], Hayden J stated that ‘the hospital staff had spent the intervening three and a half weeks trying to liaise and to … ‘mediate’ with the family’. While it appears that mediation is not intended in the formal sense here, Hayden J is clearly critical of trying to use informal ways of resolution instead of applying to court where it undermines the patient’s best interests. This was a case which had been characterised by extensive delay and in which ‘this brave 24-year old young man has been subject to pain and discomfort which could and ought to have been avoided’(para 16). 

In Newcastle Upon Tyne Hospitals NHS Foundation Trust v H [2022], the judge, while praising the use of mediation, noted ‘that the timescales of such mediation must be guided by those of the child/patient, taking care to identify the point where they might diverge from the timescales of the parents or family. When there is a plan to discontinue treatment, on the basis that it is both futile and burdensome, it is ordinarily likely to be in the best interests of a child for there to be agreement as to the way forward, on the part of all concerned. That is most likely to protect the child's dignity at the end of life. The lodestar, however, must always be the needs of the child.’ (para 25). In that case, the mediation process took place over a period of eight weeks

Any delay to a best interests decision caused by the parties taking time out to mediate or gain further expert opinions could negatively impact upon the patient by prolonging their suffering. However, in the recent case of Alder Hey Children’s NHS Foundation Trust v D, E & C [2023], the court did permit an adjournment for further expert evidence to be taken from a paediatric intensivist, despite the pain and distress that delay might entail for the patient. Therefore, delay may be appropriate or even necessary in some cases, for example to gather further evidence, in order to ensure the patient’s best interests. 

Importantly though, the Court of Appeal have recently emphasised in Dean Gregory v Nottingham University Hospitals NHS Foundation Trust [2023] EWCA Civ 1324 that they ‘will not tolerate manipulative litigation tactics’ which lead to delays and distress which is not in the best interests of the patient (para 22).

Conclusion

Recent judicial comments reinforce the importance of HCPs involving patients and families at all stages of the decision-making process. Whichever dispute processes are used, from informal discussions, to CECs, mediation and/or litigation, the courts have emphasised the importance of involving family members. While it is legitimate, and encouraged, to explore the use of informal or other resolution mechanisms such as mediation, it can also be useful for public bodies to prepare to commence litigation at short notice where the patient’s best interests requires it. This is not an easy balance and each case will turn on its own facts. Delay is not impermissible but should always be considered through the prism of best interests.

Dr Lindsey will present at the next MMF Conflict Cafe on 17th January 2024.  She will be joined by Victoria Butler-Cole KC, a leading expert in health and social care law.  The will provide an update on recent developments from the course on managing conflict along the above themes.  Book your free place on our events page.