The judge in a case concerning whether treatment should be withdrawn from a seriously ill child has lamented multiple disclosure failings just before the final hearing.
Mrs Justice Morgan said disclosure was so badly mishandled that 3,000 pages of material – much of it said not to exist or be available – was produced in the week before trial by the NHS trust making the application.
Despite serious misgivings about the lack of notice for the child’s parents, the judge refused to adjourn last year’s hearing on the ground that the situation was so urgent. The application for a court order to withdraw life-sustaining treatment was ultimately dismissed and the judge ordered a fresh hearing to raise the issues regarding disclosure.
In Birmingham Women’s and Children’s Hospital NHS Foundation Trust v KB & Ors, th judge said it was ‘enormously disrespectful’ to families and ‘professionally beyond discourteous’ to force counsel to spend time making applications for disclosure of material that should already have been provided.
‘This short judgment is intended as a reminder to the trusts who are, almost inevitably, the applicants in these difficult and stressful cases that the issues involved are, without hyperbole, quite simply issues of life and death,’ said the judge. ‘There is an obligation to put before the court and provide to those acting for the subject child’s parent and those appointed independently to represent the child’s best interests the material necessary properly to make an evaluation of the evidence and to reach a decision on those serious issues.’
Just four days before the scheduled start date of the full hearing, the trust’s barrister revealed that more than 800 pages of material had been ‘discovered’. This was despite previous assertions by the trust there were no further medical records to come.
The judge asked for a personal assurance from a named senior person in both the legal department and the medical department of the trust that everything had been disclosed.
Counsel for the parents applied to vacate the listed hearing, saying time had been lost for trial preparation in dealing with disclosure that should have been provided earlier. Lawyers said they could not be sufficiently prepared in time for the start of the case: the judge agreed, but said the gravity of the application was such that the trial date had to stand – albeit the start was delayed by two days.
The trust’s legal services manager told the court: 'On behalf of the trust I offer my sincere apologies for the oversight which occurred in procuring the records. I recognise that this was not what should be expected by the trust by the court or the parties.' The judge said the tone of the apology went some way to rebuilding a relationship with the parents, and stressed that changes had been made by the trust.
She urged health authorities in future to index medical records at an earlier stage and identify a person with responsibility for this, make that index available to the court, and to inspect documents which have been copied to make sure they are of sufficient quality.
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