This is a guest post by Ian Brownhill. Ian is a barrister at 39 Essex Chambers who specialises in public, human
rights and regulatory law. Much of his work revolves around medical decision making for adults who lack capacity to make treatment decisions and for children. Ian has appeared in a number of serious medical treatment cases involving children; he has represented hospital trusts as well as the family members of the children at the heart of these disputes. He tweets as @CounselTweets
“Doctor, we need you.” I shouted to the paediatrician who was walking away from the court room. Inside, my client had been taken ill. The paediatrician had just given evidence that, in his opinion, life sustaining treatment should be withdrawn from my client’s child.
Watching Michael Sheen’s character sit outside the court room and have a panic attack was not dramatic flourish. In fact, what you saw on television was less dramatic than what had happened in my case in real life.
Lawyers tend, for the most part, to be grumpy about how legal processes are dramatised. We complain that the details are wrong, the processes skewed or the fictional lawyers are too hammy or ineffective.
When I saw “Best Interests” advertised, I felt nervous as to how it would portray this small group of cases that go before the High Court. Of that category of case, an even smaller proportion of them have turned into the type of media spectacle that is portrayed in the programme.
It perhaps came as no surprise that the Radio Times, the Daily Mail, the Mirror and the Metro all asked in articles whether “Best Interests” is based on a true story. From my perspective, it didn’t matter whether it was based on a true story, rather, whether it reflected the legal processes which determine medical treatment decisions on behalf of a child.
One newspaper has complained that “Best Interests” contains ‘too many’ upsetting scenes. The truth is that these cases are upsetting. Not all lawyers want to be involved in the type of case portrayed and nor will “Best Interests” be what one and all decide to watch in their leisure time.
But if you did decide to watch, it’s important that you understand how true to life this drama was. Each of these cases are different. We call them, “SMTs”, serious medical treatment cases. The majority of SMTs are in respect of adults who are said to lack the mental capacity to make decisions about their medical treatment.
However, as portrayed on “Best Interests”, there is a group of cases involving medical disputes about a child’s treatment. Rare terminal illnesses are not unusual in these cases (see for example “J”). A history of repeated admission to hospital is not unfamiliar either (see for example “AS”). The scenes in “Best Interests” where Marnie’s parents rushed her across town to a hospital after a sudden change in her condition reflected the stories that family members of children with life-limited illnesses have shared with me and I have read about in court papers.
Likewise, the lives of the children at the heart of these cases are not without joy. By the time the case comes to someone like me, the joy is often fading. The court will often be asked to look at videos or photographs of happier times and hear submissions as to the extent to which that the child still experiences pleasure. Evidencing that experience is a mix of parental reflection, scientific knowledge and clinical observation.
“Best Interests” delighted me in some respects; Niamh Moriarty’s portrayal of Marnie showed the happiness that some of these children experience before they arrive as a ‘case’ in my inbox. That human aspect, especially the cinema date night, will have pleased many who work in this field.
If I am representing a hospital in a case like Marnie’s, I will often ask my instructing solicitor to obtain witness statements from some of the nurses. The nurses who care for children like Marnie are experts in respect of their comfort and give powerful evidence as to their responses to interventions and treatment. The role of nursing was underplayed in “Best Interests”, I wanted Chizzy Akudolu’s nurse character, Mercy, to have more lines and to appear in the witness box.
Noma Dumezweni, who played Marnie’s treating doctor, was allowed to show emotion. Jack Thorne wrote her character not to be a medical robot but as a human professional. That has been very much my experience in these cases and is reflected, repeatedly, in the judgments when these difficult decisions are made. Children’s Guardians do care. They do prompt you to eat. They do sob in court. They will show empathy to parents and to healthcare professionals involved in these cases.
Pippa Heywood’s delivery of Judge Spottiswood was realistic and measured. But had I been the judge, I would have had a question: “what would Marnie want?” That was, aside from a question posed by Marnie’s sister, missing in this drama.
Showing that families do not always agree about what is in a child’s best interests was an important detail. Impressive too was the airtime given to the impact on Marnie’s sister, played by Alison Oliver. But Marnie’s own wishes and feelings were absent.
The question I have been asked, more than once, is whether somebody should have asked Marnie what she would want when her condition progressed and her outlook worsened. When a patient is asked about their wishes in respect of future treatment is best explained by a doctor or a nurse. Without the question being asked of Marnie, her family, her friends, her doctors would be left hypothesising what she would have wanted.
That is for a variety of reasons, sometimes a condition is so rare that it is difficult to explain to the child what might happen to them. Some conditions limit cognition or communication and make those discussions impossible. There is an ethical (and legal) question about when a child is critically ill, but still aware, whether you tell them what they are facing. That is especially so if telling them would inflict psychological harm.
If minded, Jack Thorne has the talent to craft an entire drama about that ethical question. Why it was missing from this drama, I simply don’t know.
One ethical and legal issue which was featured was the involvement of faith organisations in these cases.
In one case, my solicitor and I accepted instructions from the parents of a child on a Friday, by the Monday morning (before seeing the clients) we had been replaced by a different team selected by a faith organisation.
Discussions about experimental treatments in the United States or in Italy are mentioned in cases (see for example the Alfie Evans case). Second opinions offered by other doctors at neighbouring hospitals are, sometimes, challenged on the basis that they lack the necessary independence. The type of expert called in Marnie’s case is a rarity, albeit, it does happen.
The part which I was most nervous about in “Best Interests” was the portrayal of what happens in court. From a purely selfish perspective, I wanted the barristers to be portrayed as human and measured. I wanted something realistic, without gavels and fancy dress shop powdered wigs, that I could point to when people ask me about the types of cases that I do. For the most part, I got my wish.
The law was flawless, Jack Thorne had been expertly advised in that respect. With regard to the tone of the dramatised proceedings, I agree with what the Cafcass Guardian said in the episode, these cases usually have a tense but collegiate atmosphere. In one of my first SMTs (that case happened to be about an adult), I was representing the family and I was making a submission when I said to the judge that the family felt an obligation to, “fight” for their loved one on a life support machine. The judge, politely but firmly, informed me that, “pugilistic” language was unhelpful in these cases.
The court scene in “Best Interests” did feel bruising. The cross examination of the doctor likely went beyond what the court would allow. The surprise e-mail evidence (evidence being disclosed during a hearing is not that unusual for those of us who practise in this forum) was arguably irrelevant. The cross examination of the father left a bitter taste, but seeing the Trust’s barrister take to her feet to intervene on his behalf was heartening.
Importantly for me, the process was portrayed realistically. Marnie’s story is not about one individual child, it’s about a group of children whose lives come before the court in sad circumstances. The method of determining how these children should have decisions made for them will be debated and reviewed.
Whilst the end of Marnie’s life could not be avoided, some of the more distressing aspects of her family’s experience could have been. Overall, from my perspective as a lawyer, “Best Interests” reflects the truth of the experience that many families go through.
Best Interests is available on catch up at BBC iPlayer.
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