By Carrie Hanman, 6 October 2020
Editor’s note: This is one of two blogs published today concerning the same hearing. You can read Adam Tanner’s perspective on the same hearing in the previous blog post.
To support my professional development as a “Return to Social Work” student, I attended (via telephone link because I had problems in joining the video-platform), a Court of Protection hearing before Mrs Justice Lieven on 2.10.20. It was listed on the Family Division of the Royal Court of Justice website like this:
Before MRS JUSTICE LIEVEN
Also sitting as a Judge of the Court of Protection
Friday, 2 October, 2020
At 11:30 AM
FOR HEARING IN OPEN COURT
COP 13659766 Re ‘PA’ MS Teams Hearing
I found the hearing interesting because it built on my previous experience as a hospital social worker and because I have a personal commitment to ensuring that human rights are upheld.
As is usual for Court of Protection cases, the hearing was subject to a Transparency Order to protect the identity of the individual (P) at the centre of the case. He was a 61-year-old male inpatient who was of Afro Caribbean origin and had been admitted to hospital with a serious foot infection. He has a history of mental health problems (paranoid schizophrenia), although this has been sufficiently well controlled for the last 8 years to allow him to live in the community. He is also a Type 2 diabetic and is asthmatic.
The initial application submitted to the court by the NHS Hospital Trust responsible for his medical care (represented by Fiona Patterson) was for a treatment order to allow a below-knee leg amputation but on the day of the hearing the application was amended to request a Court of Protection order that would allow a surgeon freedom to decide on the day whether it was in P’s best interests to proceed with the originally proposed partial leg amputation or, alternatively, to provide more conservative treatment. As counsel for the NHS Trust put it:
“So what the Trust would like is to slightly amend the care plan and Order so that the surgical procedure goes ahead but if, in theatre, the surgeon thinks he can save the foot, then he’ll drain the wound and if necessary debride the infected bone tissue and sent P back to the ward with antibiotics. But if his worst fears are confirmed, then he can proceed immediately to a below-the-knee amputation.“
Since his admission, P has regularly refused to allow examination of his foot, and redressing of his foot wounds, and he sometimes refuses to take his antibiotics. A best interest medical treatment decision order was sought on the grounds that P lacked capacity to understand the severity of his medical condition and to consent to necessary medical treatment. It was submitted that P has an impairment of mind because he has schizophrenia, and is unable to understand his current condition or weigh information relevant to treatment decisions. P was represented by the Official Solicitor (with Nicola Greaney as counsel)
Counsel for the applicant Trust explained that the original application had been for an order to approve surgical amputation of P’s lower leg because P was at serious risk of potentially fatal sepsis infection and necrosis – but on the morning of the hearing, the surgeon had observed unexpected signs of improvement which indicated a more conservative treatment approach might be possible. The application was amended to allow for the possibility that if under anesthetised examination the surgeon considered a more conservative approach was possible, the Court of Protection order should allow for the surgeon to exercise his autonomy in making a best interests decision for P. The Trust wanted to proceed with giving P a general anaesthetic and then inspect the bone and establish the degree of infection. If the surgeon’s professional judgment was that amputation was necessary, the Trust wanted him to be empowered to go ahead and do it at that point. If his professional judgment was that it could be avoided when P was properly examined in theatre, then he should be empowered to enact that decision too. This would also avoid the risk to P of having to undergo two separate procedures if amputation should turn out to be necessary.
I was pleased that the immediate response from Mrs Justice Lieven was to express her concern that an Order was being sought which would allow a surgeon to unilaterally decide, on the morning of a scheduled operation, whether amputation should proceed. I found her concern reassuring because the Court is charged with making evidence-based decisions and making an advance judgment about something that had yet to be evidenced inevitably carries risk and reinforces the perceptions of power imbalances that exist between individuals and professionals.
The surgeon was called to give evidence. He explained that the infection in P’s foot was serious and that the risk of sepsis and necrosis was high and could prove fatal. Based on the surgeon’s inspection of the foot on Monday, he had believed surgery to be clinically necessary. However, his observation of P’s foot on the morning of the hearing had indicated there to be unexpected signs of improvement. The surgeon advised the judge that he could only undertake a thorough physical examination of P’s foot in theatre, and that depending on the viability of the tissue and bone he would be willing to consider a more conservative treatment approach to treatment (e.g. draining the infection, removing infected bone tissue and treatment with more antibiotics). Cross examination revealed that the surgeon considered the threshold for amputation to be high but that if the application to keep amputation as a surgical option was withdrawn and sepsis infection spread higher up his leg, then P’s demise was likely to be rapid. Despite my concerns about granting the surgeon the final say in making best interests about P’s leg, it was hard to see an alternative way forward given the evidence the surgeon presented.
During the surgeon’s evidence it became clear that no hospital discharge care plan existed. To me this was surprising because it was evident that the hospital would be seeking to discharge P as soon as possible because of COVID19 risk factors and because a surgical ward would not be a suitable environment to support his recovery.
The reason given to the court for the lack of discharge care planning was that the uncertainty of whether amputation was to proceed meant it was impossible to plan his post-discharge care needs. Yet it was clear from the discussion that his needs were considered high enough to warrant intensive rehabilitation or even possible care within a suitable nursing home. This situation, whilst logical in theory, struck me as strange because in my previous experience as a hospital social worker, discharge planning always started shortly after the admission – particularly if someone was already known to services. It may be that many medics are unaware of what goes on within discharge planning at an operational level – but P’s evidenced need for an early discharge and his need for ongoing care and support were obvious to the judge during the hearing, so it is surprising that no reassurance of early care planning having begun was offered by the Trust’s legal representative. The judge asked for a discharge plan to be agreed by lunch-time on Tuesday so that it would be available for her at the next hearing, scheduled for the following week.
What also surprised and disappointed me during the hearing was that no reference was made to P’s wishes or to his social circumstances until the judge asked family members (P’s brother and son) to contribute. Obviously as an observer I did not have access to the legal bundle which presumably would have included a thorough best interests assessment, but – like me – the judge was surprised to discover part way through the hearing that P has a wife. She asked whether all the correct papers had been served to P’s wife, and was assured that they had been, but I do feel that the hearing would have been better informed by verbal reference to P’s wishes and his social circumstances at the outset. I didn’t really feel that P’s wishes and feelings were given as much weight as I expected them to receive in this hearing. I also wondered whether P (who was described as “pleasant and cooperative”) had been invited to attend the court hearing at which life-changing decisions were being made about him. However, I do feel the judge was sensitive to the situation the family was in and that, had they voiced explicit objections to the application, these would have been listened to.
Although the application was made by a hospital Trust in respect of a best interest decision for a surgical procedure, the local mental health Trust had been named as a respondent. Their legal representative (Bridget Dolan) made the point that the Trust considered it inappropriate to have been named as a respondent because they were not opposing the application for a Court of Protection decision order on a physical condition: they had met their duty of care towards P and they would continue to do so through further assessment of P’s mental health once more is known about the treatment pathway to be followed. The judge’s response was somewhat impatient: she asked “where is this going?” and said that if it related to a cost application that could be dealt with later (it is in fact to be dealt with in the next hearing) and that if it arises from a sense of grievance then it should be dealt with in correspondence between the NHS bodies, since “in light of the importance of the underlying issues, I’m not terribly interested in dealing with that now”. (The Clinical Commissioning Group was also represented in court, by Vikram Sachdeva.)
In her short oral judgment, the Mrs Justice Lieven said she was confident (on the basis of a report from a consultant psychiatrist) that P lacked capacity to understand and weigh up information about his condition and the treatment options available. She declared that it was in P’s best interest to undergo further medical treatment and approved the amended application. (My connection cut off a few minutes before the end of the hearing.)
A further hearing is set to take place in 7 days, after the surgery, and will address how P’s future care and support needs will be met in the least restrictive way once he is discharged from hospital. I hope to attend this and if so, I shall write a follow up blog.
This was a thought-provoking hearing which will help my reflective practice when I return to social work. It is important for professionals to remember that individuals with mental capacity, even those with a history of mental illness, have the right to refuse treatment against medical advice even if it could save their life. It was common ground amongst the parties (and family members) that P did not have the mental capacity to make this decision. Nonetheless, his wishes and feelings – which were apparently not to have surgery should have weighed heavily in the best interests decision. After all, an amputation has life changing consequences for individuals and families and it is essential for people to be involved as far as possible and have their voices heard.
Having attended this hearing, I do feel that P’s human rights were sensitively observed but I still remain uncomfortable about the principle that the Court of Protection has the legal power to provide for advance autonomous best interest decision making to a single professional. I would also personally be interested to learn whether P had been offered the services of an Independent Mental Capacity Advocate or whether anyone from his family had felt able to undertake this role. From what was said in court it was apparent that P’s family members were anxious not to alienate P by appearing (as the judge put it) to be “siding against him”, and this seemed to make it difficult to speak freely.
Carrie Hanman qualified as a social worker in 1994 and after taking a career break for family reasons she is in now in the process of renewing her registration as a Social Worker with @SocialWorkEng She tweets @CarolineRTSW