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Court of Protection Newsletter #1818.03.20

Welcome to the March issue of Spire Barristers’ Public Law Newsletter covering news from around the web, practice updates and case reviews in Court of Protection and Public Law matters.

Edited by Jacqueline Thomas and written by Aaqib Javed.

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Emergency Legislation being put before parliament makes potentially major inroads to human rights and detention.

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Further reading; The Small Places

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COVID-19 News

Guidance published on Judicial visits to P;

Consultation

BASW Cymru have lauched a survey in relation to Mental Capacity Act practice and the prospects for Liberty Protection Safeguards (LPS) implementation. The survey can be found here (English) and here (Welsh).

The independent review of mental health law in Scotland have launched a website and a consultation that is investigating the way mental health law is working in Scotland.

A consultation is being carried out by the Tribunal Procedure Committee. It seeks to obtain views on the way that the First-tier Tribunal lists hearings in relation to applications by patients detained under section 2 of the Mental Health Act 1983.

Cases Review

Cardiff & Vale University Health Board v P [2020] EWCOP 8

Court of Protection: Hayden J – 20-21 February 2020

An application was made by Cardiff & Vale University Health Board (‘the Health Board’) in relation to the treatment of P, a 17-year-old boy with autism and learning difficulties. It was also noted that P lacked effective verbal communication skills. The judge found that P lacked capacity and made the relevant orders. However, the judge voiced his concern at the delay in bringing the application to the court.

In January 2019, P had a CT scan under general anaesthetic which showed that he had tooth decay and impacted wisdom teeth. It does not appear that P was suffering from pain with respect to his teeth at that particular moment in time. This seems to have changed in October 2019, with P’s parents noting that he had started to display concerning behaviour, including banging his head against walls. This behaviour continued with “increasing frequency.” P’s parents believed that dental pain was the cause of his distress. The situation was exacerbated in November 2019 when P’s parents took him to A&E after he had bruised his head as a result of banging it against the wall. The worry of P having fractured his skull appears to have prompted the Health Board into convening “a multi-disciplinary meeting”. An application to the court was made on the 20th of February 2020, with the proposed treatment scheduled to take place in March 2020. To further complicate matters, a lack of judicial availability in Cardiff meant that a telephone hearing was listed with Hayden J.

The judge considered the 5 month delay between evidence of P’s pain becoming known and the proposed treatment as “indefensible” and “little short of an outrage”. He also noted that P was surrounded by professionals but despite this, nothing appears to have happened to expedite P’s wait for treatment. The judge summarised the situation powerfully by stating that the “philosophy of the Mental Capacity Act 2005 is to enable those who are vulnerable in consequence of incapacity to have equality of opportunity with their capacitous co-evals. Here, P’s incapacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment.”

Hayden J stressed the importance of information sharing and the “intrinsic” link it has with good medical practice. A failure to share information in this instance had led to P’s welfare being adversely impacted. The judge’s despair was summed up in the judgment in which he said that there was “no point identifying lessons to be learned if they are not, in fact, learned.”

Finally, because P’s parents were concerned that the record of his behaviour could negatively impact his chances of securing a residential placement upon turning 18, the judge made clear that “those who are considering options for P in the future will know that his recent behaviour appears likely to have been triggered by a neglectful failure to address a dental/medical problem” rather than evidence his “overall condition”.

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Sherwood Forest Hospitals NHS Foundation Trust & Anor v H [2020] EWCOP 5 (14 January 2020) and Sherwood Forest Hospitals NHS Foundation Trust & Anor v H (Rev 1) [2020] EWCOP 6 (03 February 2020)

Court of Protection: Hayden J

This was an application by a health trust (‘The Trust’) who were asking the court to approve a care plan which had been prepared by a consultant surgeon alongside the daughter of the incapacitous person. Mrs H (the subject of the proceedings) was living with her daughter, Ms T, and, since the middle of 2018, had developed a squamous cell carcinoma (‘SCC’) on her left cheek. Essentially this is a cancer in the mouth and, if left untreated, can be both painful and fatal.

At the time of the hearing, Mrs H was 71 years old. She had been admitted for treatment under the Mental Health Act 1983 in 2014 and was subsequently diagnosed with Bipolar Affective Disorder. Her GP had referred her to a hospital run by The Trust in October 2018. The referral led to the diagnosis of SCC but the court noted that, following this diagnosis, Mrs H began to withdraw from hospital intervention .

The Trust undertook a capacity assessment in May 2019 which concluded that Mrs H did not have capacity. An application to the court was not made until December 2019. Hayden J called this delay “profoundly troubling” and declared that it was not reasonable for The Trust to wait for 6 months before seeking the court’s approval under the Mental Capacity Act 2005. The growth of the tumour since the capacity assessment was undertaken made the delay “potentially fatal”.

The court heard that Mrs H had been unable to “absorb and accept” the diagnosis and so Mrs H was found to be without capacity. It is important to note that Hayden J emphasises that “it does not…follow automatically that having articulated an alternative diagnosis, which could not in fact be rooted in the evidence and, in refusing to contemplate cancer…she [Mrs H] lacked the capacity to weigh up and evaluate the options”. It was therefore crucial to acknowledge that the deterioration of her mental health following the diagnosis contributed to the finding of incapacity. Censuring The Trust, Hayden J stressed that delay “will invariably be inconsistent with P’s welfare and, if resolution cannot be achieved, having particular regard to P’s own timescales, then proceedings should be issued.”

The delay also led to a reduced amount of surgical treatments being available to Mrs H. The court noted that it could sanction the “no-treatment” option in appropriate cases but this was not a matter in which that would be in Mrs H’s best interests. The surgeon’s recommendation of a surgical excision was approved, but, at the time of the hearing, it was recorded that the delay may have made this option impracticable. Although Mrs H had now “acquiesced” to the treatment, it was done without capacity, and The Trust were authorised to sedate her if necessary.

The matter came before Hayden J around 3 weeks later where it was revealed that the tumour was now thicker and had attached itself to the underlying bone on Mrs H face. This made a surgical excision futile. The Trust were then ordered to devise a further care plan which would be subject to review by the same judge.

Read judgments here and here

Sherwood Forest Hospitals NHS Foundation Trust v C [2020] EWCOP 10

Court of Protection: Hayden J- 27 February 2020

This case concerned C, a woman in her 60s. C had been diagnosed with paranoid schizophrenia and delusional thoughts and had been admitted to hospital under the Mental Health Act 1983 in early 2019 after having stopped taking medication for a kidney issue. She was diagnosed with endometrial cancer in November 2019. The Trust made an application to the court in order to approve a hysterectomy being carried out on C.

Hayden J noted that C had instigated the involvement of medical practitioners with respect to her cancer diagnosis: “It was C who decided to seek out medical treatment in the first place and, secondly, C who pursued further treatment at the hospital to investigate the cause of the bleeding.” During these initial interactions, it appeared to the medical professionals that C was capacitous and was allowed to sign forms consenting to surgery.

In the following weeks however, C disengaged with the doctors at The Trust and voiced her belief that only God could cure her cancer. The court heard that C had previously articulated delusional beliefs with respect to religion and Hayden J was mindful of not striking an insensitive tone when discussing C’s theological perspectives.

A capacity assessment was held in the middle of February where it was registered that “C is unable to weigh the evidence required to make an informed decision in relation to her treatment and her inability to engage in weighing the consequences indicated a lack of capacity relating to her consent to treatment.” After reading this, and hearing evidence from various medical staff, Hayden J declared that it was in C’s best interests that treatment went ahead: there is amongst the doctors a “strong instinct to preserve human life”; moreover, “when capacitous [C] would want to live.” This declaration was subject to The Trust devising, and the Court approving, a plan concerning the use of restraints during surgery should the need arise.

Read Judgment