Sherwood Forest Hospitals NHS Foundation Trust & Anor v H [2020] EWCOP 5

Hearing date 14th January 2020

This report considers an application to the Court of Protection.

What Happened

Mrs H was 71 and lived with her daughter Miss T and had numerous mental health issues.

She had been known to the local mental health team since 2014, when she had been hospitalised under section 2 and then 3 of the Mental Health Act.

During this stay, she was diagnosed with bipolar disorder. Although initially it appeared that Mrs H accepted her diagnosis, she displayed deceptive tendencies. She ‘deceived the medical establishment into believing she was taking her medication when in fact she was not’ and did not effectively engage with her diagnosis. She was discharged in December 2014.

Mrs H became aware in October 2018 that she had squamous cell carcinoma (‘SCC’ – which manifested as a growth on her cheek) which would require surgical removal under general anaesthetic. Again, she displayed duplicitous tendencies – she engaged with surgery and reconstruction plans, but failed to attend any follow up appointments, and often ‘entirely rejected the diagnosis of cancer’.

On 30th May 2019 Mrs H was assessed as lacking the capacity to make decisions in relation to her medical treatment. Despite this happening in May, the application to the Court of Protection to secure authorisation for the required treatment, did not happen until the end of December.

Hayden J highlighted that treatment was not progressed sufficiently quickly, because clinicians were unclear on the circumstances in which Mrs H could be forced, physically and by coercion if necessary, to attend for her treatment and, if so, how that might be achieved.

What was found

Hayden J surmised that the delay was unacceptable. He stated ‘that whilst avoidance of delay is not [explicitly] incorporated into the framework of the Mental Capacity Act in specific terms, it is to be read into that Act as a facet of Article 6 and Article 8 [human rights]. It is self-evident and, indeed, striking, that time here was of the essence and delay was likely to be inimical to Mrs H’s welfare. Not only inimical but as it has transpired, potentially fatal.’ (as the growth had grown).

He said the delay was inconsistent with Mrs H’s welfare, and could not see why an application was not made to the court much sooner than December. The Mental Capacity Act creates an obligation to deploy all reasonable steps available in order to promote a return to capacity.

Hayden J stated ‘a reasonable period before making an application might have been a week, two weeks, three weeks, but it was certainly not 6 months.’

Mrs H, her daughter, and her doctor Mr Pollock devised a plan, reflected in her care plan, for coercive treatment that Hayden J considered to be ‘both unusual as well as intensely sensitive’, and in her best interests.

He stated that the plan was ‘the appropriate and kindly way forward and one that respects, in different ways, Mrs H’s dignity, her autonomy and the very grave circumstances that she finds herself in’.

The plan involved some subterfuge but was benign and the least restrictive way forwards at that point. It had initially been contemplated that Mrs H should be sedated and physically coerced into treatment but she was physically acquiescent although definitely not capacitously agreeing. Sedation remained the Trusts’ fall-back position.

The judge added the following from revised guidance about WHEN a medical treatment issue should go to the CoP and not just be decided on the basis of best interests process and thinking.

8. If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

(not an exhaustive list)

then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.

9. Where any of the matters at paragraph 8 above arise and the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must be made. This is to be regarded as an inalienable facet of the individual’s rights, guaranteed by the European Convention on Human Rights (‘ECHR’). For the avoidance of any doubt, this specifically includes the withdrawal or withholding of clinically assisted nutrition and hydration.

10. In any case which is not about the provision of life-sustaining treatment, but involves the serious interference with the person’s rights under the ECHR, it is “highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of [capacity and] best interests, with [the person] having the benefit of legal representation and independent expert advice.”[5] This will be so even where there is agreement between all those with an interest in the person’s welfare.

11. Examples of cases which may fall into paragraph 10 above will include, but are not limited to:

a. where a medical procedure or treatment is for the primary purpose of sterilisation;

b. where a medical procedure is proposed to be performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cells, tissue or bodily fluid to another person;

c. a procedure for the covert insertion of a contraceptive device or other means of contraception;

d. where it is proposed that an experimental or innovative treatment to be carried out;

e. a case involving a significant ethical question in an untested or controversial area of medicine.

12. Separately to the matters set out above, an application to court may also be required where the proposed procedure or treatment is to be carried out using a degree of force to restrain the person concerned and the restraint may go beyond the parameters set out in sections 5 and 6 Mental Capacity Act 2005. In such a case, the restraint will amount to a deprivation of the person’s liberty and thus constitute a deprivation of liberty.[6] The authority of the court will be required to make this deprivation of liberty lawful.

13. It requires to be stated clearly that those providing or commissioning clinical and caring services should approach the Court of Protection in any case in which they assess it as right to do so.

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The full report can be found here