By Natalie Matthews – 8th July 2020
Editor’s Note: You can find another account of this hearing in our blog of 24th June, 2020 by NB – here
On 22 June 2020, I attended a hearing in the Court of Protection before Mr Justice Hayden. The case concerned a young lady, who had learning difficulties, who had recently been diagnosed with stage 3 cervical cancer. The judgment has since been published here.
By way of background, I am a solicitor working for NWSSP Legal & Risk Services. I started working for Legal & Risk Services on 9th March 2020 (so just before lockdown was imposed). I represent Health Boards across Wales. I primarily deal with applications concerning Deprivation of Liberty Safeguards (DoLS) but I also deal with serious medical disputes and other welfare applications i.e. to decide where a person should live if they are deemed to not have capacity to make their own decisions about that. DoLS is a safeguard created by legislation which allows patients speedy access to the Court of Protection if a review of their placement is deemed necessary i.e. because the patient or their family are unhappy about it or if the patient is requesting to go home. My role involves drafting witness statements for Court and then attending the hearings on behalf of the Health Board.
As I am new to my role, I thought it would be helpful to attend this hearing as part of my training. As part of my professional obligations as a solicitor, I am expected to carry out training throughout the year. The Solicitors Regulation Authority does not specify what types of training this needs to be. I thought that perhaps observing a hearing would be a good form of training.
I knew nothing about the hearing prior to it taking place but I am very pleased that I chose to observe it. As I said, this case concerned a young lady who had recently been diagnosed with stage 3 cervical cancer. The application had been brought by the NHS Trust responsible for her care as there were some concerns that she did not properly understand her diagnosis and what this meant for her future. She understood that it was something bad but the doctors were not convinced that she understood the real seriousness of it. Essentially, without the treatment, she had a high likelihood of dying within 12 months. That time was also likely to be uncomfortable and painful. With the treatment (which was highly intrusive), she had a 30-40% chance of surviving for 5 years. If she survived that 5-year term, she would then be considered as cured. However, the downside to the treatment would be that K would be rendered infertile and she would enter the early menopause. This was explained to K as being unable to have babies.
In addition to the concerns about her capacity, there were also concerns that she would withdraw from treatment. As I said, the treatment was highly intrusive and it was stated in the Court that even the most robust person would struggle with it. Therefore, the Trust rightly wished to have the Court’s guidance in advance. Mr Justice Hayden stated as follows:
“If K consistently refuses to attend the hospital for treatment, they consider that it will not be in her best interests to take coercive measures to compel her to travel to hospital, using restraint. I agree. To do so would compromise her dignity and would be inimical to her best interests. The clinicians have made the utilitarian and thoughtful calculation that this type of restraint is more likely to exacerbate K’s withdrawal than encourage her cooperation”.Mr Justice Hayden
Therefore, the Court endorsed the approach of the Trust that K would not be forced to attend hospital if she did not wish to do so. To force her would probably result in K further refusing the treatment later down the line.
Mr Justice Hayden concluded that the Trust had appropriately brought the application. This was on the basis that: (1) the treatment was highly intrusive; (2) it would bring on the early menopause and (3) the treatment plan was so onerous that there was a distinct possibility that K would withdraw from it when it became more challenging. K’s mother (who was sitting by her daughter’s side throughout the hearing) was in full support of her daughter but she was concerned that when the initial novelty wore off, K may not wish to continue with the treatment, as K did not understand that she was at risk of death. One comment made by Mum really highlighted this to me – when she had discussed with her daughter about the possibility of her dying one day, k thought that her mother would live forever.
This hearing took place virtually via Microsoft Teams. Since the lockdown in March, the Court of Protection has swiftly adapted to these hearings taking place virtually. This is to be congratulated, considering that the Court deals with some very serious issues. In light of the serious issues being dealt with, I think it is important that the hearings continue to be public and it should not be underestimated how much work goes on behind the scenes.
For myself, I found the hearing very interesting and helpful for my training. It was interesting to see the doctor giving evidence and also hearing from K’s mother. As I’ve said above, my role involves drafting the witness statements of clinicians like the doctor who gave evidence in this hearing. In my short time at the NHS, whilst I have attended Directions hearings, I have not attended a final hearing and therefore, I am yet to see a clinician give evidence in this way. Mr Justice Hayden challenged the doctor and he was not frightened to question him thoroughly. When it is time for me to attend a final hearing with an NHS Health Board, this experience will be invaluable in preparing them for what is to come.
In terms of what I’ll take from it, I will definitely take the lesson that NHS Trusts should not be frightened to make these applications and actually they will be highly regarded by the Court for doing so. Being proactive in this type of situation, which can often become very urgent very quickly, is so much better than being reactive.
I have read the Judgment following the drafting of this blog. Whilst the content is very similar to what Mr Justice Hayden said in Court, there was some additional references to his Serious Medical Treatment Guidance. Whilst it is important to read the Judgment afterwards, it is not the same as actually listening to the hearing as the Judgement does not go into detail of the questions and answers posed. However, after listening to the hearing, and reading the Judgment, the doctor’s answers are subtly included and you can tell that they influenced the decision of Mr Justice Hayden.
I would also say to other solicitors – please listen to these hearings.
Natalie Matthews is a solicitor for the Complex Patient Team of NWSSP Legal & Risk Services. The Complex Patient Team assist Health Boards across Wales with some of the most complex cases and issues facing clinicians in the NHS today. Natalie obtained her degree from Cardiff University in 2013 and qualified as a solicitor in May 2019. When not in work, she is busily caring for her 2 young children.
Natalie tweets @natalielorna1