By Ravina Bahra, 10 February 2021
This hearing (case number: COP 13711789) before Ms Justice Russell on 9 February 2021 concerned an application to authorise up to five treatment procedures – likely to involve some degree of restraint amounting to deprivation of liberty – that P does not want to undergo.
This was a directions hearing to determine what additional evidence was required before a decision can be made. The final hearing is planned to take place at the end of February.
P, who we will refer to as Mr Jones, is a man in his 50s with a diagnosis of schizophrenia and signs of vascular cerebral atrophy. He also has Type 1 diabetes.
Since February 2018, he has had a benign peptic oesophageal stricture (abnormal tightening or narrowing of the oesophagus) which has caused him to suffer from progressive dysphagia (difficulty swallowing food and fluids) and intermittent vomiting. This has had an impact on his ability to eat and drink, which consequently has an effect on his Type 1 diabetes and predisposes him to pre-renal failure.
The applicant, the NHS Foundation Trust, was seeking a declaration that it would be lawful to treat Mr Jones – against his wishes – with a series of endoscopic dilatations, to prevent his condition from worsening. (Check out the guidelines on endoscopic dilatations here). Mr Jones has repeatedly stated that he does not want to have any planned endoscopic dilatation.
Rhys Hadden acted as counsel for the NHS Foundation Trust during these proceedings, and provided a very useful opening introduction to the issues in the case. Mr Jones, the respondent, was represented via the Official Solicitor as his litigant friend: Richard Partridge acted on his behalf.
The NHS Foundation Trust sought an order that would enable Mr Jones to be treated. The proposed procedure is an endoscopic dilatation, without which his stricture will continue to narrow until completely obstructing his oesophagus and leaving him unable to swallow. Mr Jones would have to undergo up to five dilatations over a period of 3-6 months. These would prevent his condition from worsening and avoid further unplanned admissions to hospital related to this condition.
Though Mr Jones has repeatedly refused to consent to this procedure, his condition has been reviewed by three different consultants over the last four months, each finding that he lacks capacity to make this decision. Another capacity assessment has been scheduled to take place in mid-February. If Mr Jones is found, in a final determination, to have capacity to make his own decision about endoscopic dilatation, the court will lack jurisdiction. If he is found to lack capacity to make his own decision, then the court will make a decision in his best interests (in accordance with s. 1(5) MCA 2005).
At a next hearing, the court will need to decide:
- Capacity: Whether a final declaration can be made that Mr Jones lacks the capacity to make a decision as to whether to undergo a series of endoscopic dilatations – and if so;
- Best interests: Whether it is in Mr Jones’ best interests to proceed with a series of endoscopic dilatations (between two and five) over a period of 3-6 months, taking account of Mr Jones’ own wishes, feelings, values, and beliefs.
- Deprivation of liberty: Whether the restrictions to Mr Jones’ liberty associated with the proposed treatment (e.g. sedation and possibly physical restraint) amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights and should be authorised as lawful under s.4A(3) and 16(A) MCA 2005.
The view of the NHS Trust currently is that Mr Jones lacks capacity to make his own decision and that it is in his best interests for the endoscopic dilatations to be carried out. The Official Solicitor has reserved her position on capacity and on best interests, pending another capacity assessment and a meeting with Mr Jones to ascertain his wishes and feelings.
Before the next hearing an additional capacity assessment will be carried out and there will be a report of Mr Jones’ wishes and feelings. A care and treatment plan will also be prepared. At present, the extent to which Mr Jones would be deprived of his liberty should he undergo this procedure is unclear as the care and treatment plan was not presented before the court.
Though this was a very short hearing (lasting a total of ten minutes), the ground covered was extremely important and the decision will be consequential – whether Mr Jones will be deprived of his liberty up to five times and given treatment he does not want but which is considered to be in his ‘best interests’, or whether he has the capacity to refuse treatment, leaving his stricture to worsen.
I hope to be able to attend the next hearing and follow this case to its end.
Ravina Bahra is an aspiring barrister and is interested in politics, social welfare, migration matters, and access to justice. She has an undergraduate degree in Law from the University of Essex and recently completed a postgraduate degree in Human Rights at the London School of Economics. She tweets @RavinaBahra