Urgent Applications: Serious Medical Treatment Cases in the Court of Protection08.04.19
The case of East Lancashire NHS Trust v PW has recently considered the concept of ‘urgency’ in relation to the proposed amputation of W’s leg. The need for the operation had been known about for some time, however due to W’s clearly expressed wishes and feelings, a conservative approach to his treatment had been taken. Following a review in February, clinicians identified that the operation could not wait any longer and needed to be done within the next four weeks, and with PW maintaining his position that he did not want the surgery, steps were taken to put an application before the Court of Protection.
Matters progressed and following an emergency admission, the application was issued urgently with the altered clinical opinion that the surgery must go ahead within the next 48 hours. The Trust was the subject of some criticism from the court for not issuing sooner.
And so, the application came before the court. The first question asked was whether the application was genuinely urgent and needed to be heard on the same day. Fortunately, following some evidence from a specialist involved in PW’s care, the question of urgency was addressed fairly quickly. However, it gives rise to the question: when is a case truly urgent, and when can it be put off for further evidence?
There will be obvious cases at each end of the spectrum, with those needing the attention of a judge in the middle of the night, to those which are clearly an elective surgery and whilst needed soon, can wait a number of days without detriment to the patient.
The Official Solicitor naturally likes to gather evidence of his own and seek a second opinion. Indeed, it is a proper approach when protecting P’s Article 6 rights and the court will benefit from further expert evidence when making a decision. The Official Solicitor also likes to ensure that the caseworker has had the opportunity to visit P and to spend time discussing his or her wishes and feelings about the proposed treatment. Here lies the balancing act between protection of P’s rights and protection of his welfare.
The question of urgency was considered in this particular case given the short timeframe that the court had in which to make the decision. There is no explicit test for what constitutes ‘urgent’ in serious medical treatment cases, although a common sense approach suggests that it would apply in any case where P’s life or health is at immediate risk. PW was receiving IV antibiotics to keep the infection at bay, however clinicians could not be clear whether these would be successful. The court took into consideration the options of allowing time to see if the antibiotics would take effect and postponing the surgery beyond the proposed 48 hour window, or whether to authorise the surgery regardless of the response of the infection to the antibiotics.
Due to the short timeframe and the case not being of ‘exceptional’ urgency, PW did have representation from the Official Solicitor which ensured that the court benefited from detailed cross-examination of the specialists involved in his care, despite the lack of time to seek a second opinion. The court indicated that whilst the application would have benefited from a longer timetable to allow at least a visit to PW, the fact that the Official Solicitor had been given the opportunity to attend and the case was not brought in the middle of the night did go some way to preserving W’s Article 6 rights.
What NHS trusts must take away from this judgment is that an urgent application is not to be preferred by the court. The case of NHS Trust 1 v G  1 WLR 1984 clearly sets out that applications should be made no later than four weeks before the expected date of the procedure. The court had the benefit of extremely clear-cut evidence as PW’s best interests, however this will not always be the case and allowing a proper timetable as set out by Keehan J is of the utmost importance when considering applications with the level of gravity associated with serious medical treatment.
In the case of G, Keehan J set out the following at paragraphs 19-20:
19. Save in case of genuine medical emergency, any application should be made no later than four weeks before the expected date of delivery. This time frame is required for the following reasons: (i) where P is assessed as lacking capacity to litigate, it will enable the Official Solicitor to undertake any necessary investigations; (ii) to ensure the final hearing is listed and heard at least a few days before the proposed interventions; and (iii) to enable a directions hearing to be held around two weeks before the final hearing. The court and the parties will then have the opportunity to ensure the court has all the relevant and necessary evidence at the final hearing.
20. In compliance with the timetable set out above, the trusts should in a timely manner, take the following steps: (i) issue the application’; (ii) notify the Official Solicitor of the application; (iii) disclose any evidence to the Official Solicitor which they consider appropriate; (iv) seek an urgent directions hearing, preferably around two weeks before the final hearing, at which disclosure and the scope of the evidence can be determined; (v) liaise with the clerk of the rules to list the substantive hearing at an early stage.
Planning and open communication between both clinicians and their legal advisers is essential. This case provides a useful summary of what is expected from trusts in terms of planning for such applications and the best interests test which the court should apply in such cases. Nearly half of the cases before the Court of Protection in relation to serious medical treatment relate either to caesarean sections or amputations, both of which are likely to be reasonably foreseeable procedures, save in cases of genuine emergency.
A final thought is that healthcare bodies must be aware that both the Mental Capacity Act 2005 (s.37(3)) and the Code of Practice are clear that an IMCA should be involved wherever a serious medical treatment decision is contemplated. The IMCA’s involvement should be recent to the application being issued at court so there is up to date evidence of P’s wishes and feelings for the court and the parties to consider. In the most extremely urgent cases this will not be possible, but where the likelihood of a serious medical treatment decision is contemplated healthcare bodies must ensure any application includes an up-to-date report from P’s IMCA to accompany the supporting clinical evidence or risk judicial criticism.