By Martha Purdy, Meg Aitken and Claire Martin, 22nd July 2021
Attending a Court of Protection hearing is an excellent opportunity to see justice in action. Two students, Meg – about to start medical training in September 2021, and Martha – starting A levels in September and interested in Law, joined Claire (part of the Core Team of the Open Justice Court of Protection Project), at a hearing before Mr Justice Hayden on 5th July 2021.
The case (COP 13418695) was about whether it was in the best interests of “M” to have full dental clearance (which means having all of one’s teeth removed). The applicant NHS Trust was represented by Emma Sutton. There had been previous proceedings (before Mr Justice Williams on 27th May 2021) at which it had been decided that M lacked capacity to decide upon the treatment proposed.
Mary Neal has blogged about this case in which she details the ethical considerations and procedural aspects of the case.
Emma Sutton opened with a summary of the case, which is always extremely helpful for observers. M is in his 30s and lives with his father. M requires 24-hour care and support due to ‘pervasive developmental disorder, childhood autism, mild learning disability and PTSD (due to ICU syndrome over the past year)’. M is said to have a great sense of humour, like music and has an interest in 1980s TV shows. M’s sister, O, was also a party in the proceedings, representing herself, and she brought M to life in her description of him and their weekly time together:
“He is my favourite person – I spend Wednesdays with him at the moment. When he smiles, it’s the best thing ever. He has significant difficulties with mild learning disability, autism and communication problems – but he thinks and knows how he feels.”
M has dysarthria and his primary method of communication is via a light writer. He is registered blind and uses a wheelchair. His package of care is jointly funded by the CCG (Clinical Commissioning Group) and the Local Authority (both represented at the hearing by Natalia Levine).
M was represented, via his litigation friend the Official Solicitor, by Michael Horne QC.
The Main Issues
Mr Justice Hayden wanted to explore, in detail, concerns that he had about ordering restraint for M to undergo the dental clearance, and then subsequently the possibility of M refusing to eat food that he enjoyed. He noted that M’s own wishes are important to understand, as was protecting the quality of his trust in those around him, most notably his family relationships. It was clear that he had wanted a more thorough examination of the case, and although no expert or treating witnesses had been arranged for the hearing, they were subsequently called in what became a hearing that spanned 3 days.
“P is a very young man. He has a loving family. This case needs to be considered very carefully. We are contemplating a plan in which, covertly, he’s taken to hospital – he won’t be told why. The Trust has applied for authorisation to restrain him if resists. He has shown consistent resistance [to other health interventions] – which a capacitous person might show. There has not been much dental examination because of that resistance. Restraint weighs heavily on a judge’s mind.” (Mr Justice Hayden)
I (Claire) know from personal experience that attending a court hearing can be anxiety-provoking for observers – for people like Martha and Meg, who are sixth form students, perhaps even more so than for observers familiar with the Mental Capacity Act and the care system, law, journalism etc. The ‘packaging’ around attending a court hearing, I have realised, is so important: what do I write in my email request? I haven’t got the link what shall I do?! (often the link might not turn up until very close to the start time); I can’t hear anything; Have I muted myself and turned my video off?; Will I have to speak to the judge – how do I address them?
I have only been doing this myself for about a year, and still feel worried that I will commit a terrible faux pas or get completely lost in the proceedings – or worse, do or write something illegal. Jenny Kitzinger has blogged about mentoring undergraduates, and her suggestions were really helpful when thinking about what would be useful to support our joint observations at this hearing. We set up a joint private chat group on Twitter to facilitate quick communication and for me to be able to explain things (as best I could) as the hearing progressed. There were tense moments at the start when the link had not reached us all even 4 minutes before the scheduled start:
And then, once in, dealing with unexpected computer setting disruptions right at the start of the hearing:
For Martha and Meg this was an entirely new world – they weren’t aware of the Court of Protection or the Mental Capacity Act prior to finding out about and expressing an interest in attending a hearing. So, their reflections cast fresh and unsullied eyes over the proceedings they observed.
I am passionate about a potential career in Law and next year when I begin my A levels in year 12, I will be studying History, French, Maths and Chemistry to further my interest in these subjects and also allow me to study Law.
The day before, Sunday 4th July, Claire Martin sent me the details of the hearing that would be the next day, Monday 5thJuly at 10:30am, and then assisted me in drafting an email to request access to observe. I received an automatic response; however, it was not until 5 minutes before the hearing actually started – at 10:25am – we received the email containing the link for us to join via MS Teams. This was quite stressful.
Because this was my first observation in the Court of Protection, I was shocked by how thorough Mr Justice Hayden was in his questioning. I was shocked by this because it seemed to me that Mr Justice Hayden’s thorough scrutiny and questioning was evidence of his personal compassion and ambition to do what exactly was in M’s best interest. Although perhaps ignorant, I hadn’t expected the judge to be so thorough, and not to skip over such small details as M’s favourite food for example, in order to bring the case to a close sooner. I realised the value of Mr Justice Hayden’s deep compassion.
Despite understanding that removing M’s teeth was needed because M’s current pain was unbearable and could not be maintained at the level it was, Mr Justice Hayden was keen to explore whether “less restrictive” options had been considered and importantly, discussed and questioned the impact, after the dental procedure, on M.
Mr Justice Hayden’s meticulous and forensic exploration of the case was clear to me just by watching him – he paused frequently, clearly to consider. I was also fascinated by Mr Justice Hayden’s scrutiny of each person to look at everything in the whole “sweep of [M’s] life”.
Because of Mr Justice Hayden, I was inspired to do more research of the role of the judge, and I am in awe of the role. The way in which Mr Justice Hayden considered the personal impacts, not just the medical – evaluating the impact of the dental procedure on M’s relationships with his family and the potential risk of re-triggering trauma through an understanding of M’s historical trauma and the psychological impact this can have – reminded me that with this particular judge and through Mr Justice Hayden’s meticulous exploration, the outcome of this case would be exactly what was in M’s best interests.
What also stood out to me after observing this particular case, was that there are not always major disagreements in court. I had been under the impression that all court cases have defendants and prosecutors with oppositional views who flatly argued against each other. However, through this observation I was shown this was not the case. There seemed a general consensus that M needed this medical treatment and that that was in his best medical interest, but what was discussed and worked through was in which way to carry out the dental procedure to cause M the least distress as possible. So that it was in M’s “best welfare interests as well as his best medical interests”.
The judge collected as much evidence as possible through speaking to M’s anaesthetist, GP, Dr C (a second opinion consultant in special care dentistry) and M’s sister to try and work through with the barristers and witnesses how the dental procedure could be done in the least damaging way. Everyone present in the courtroom contributed to the evidence and “discussion” as the judge described it and I was surprised to see there was very little opposition. The points of disagreements I observed came mostly from M’s sister. We learned that she was worried about the plan to use diazepam as a sedative for M to take him from his home to the hospital. She believed the diazepam sedative would not be strong enough for M and so M would be in a lot of distress and potentially this could damage the precious relationship between her and M.
I found observing the hearing absolutely fascinating. It gave me a superb insight into real life law and undermined a lot of what I had seen on TV about law proceedings and the court. This experience has widened and deepened my ambition to pursue a career in law and I hope to observe many more cases.
I’m hoping to study medicine in the future and, when a family friend (Claire) informed me that there was an open court case regarding medical ethics and treatment, I was keen to observe the proceedings.
I was impressed by how accessible the hearing was to interested members of the general public and how accommodating the solicitors and judge were at each step – briefly describing relevant information in their bundles so that all involved were clear about what was happening. I was particularly interested in the judge’s thinking, which he verbalised as we progressed through the case.
Having heard about M’s medical needs – his teeth are cracked and bleeding, causing chronic pain and limiting his food options – my initial reaction was that he should of course be treated as the doctors recommended, even if this was against his will and therefore involved physical restraint.
We then heard from his sister, who described M as a person – his interests, his relationships and her deep affection for him. It became clear, and was highlighted by the judge, that M’s relationships were absolutely central to his life and wellbeing. For him to be aware of what he might experience as a betrayal by his sister (in that she hadn’t protected him from the treatment and in fact had supported it) would leave M having to deal not only with the trauma of having his teeth forcibly removed, but potentially the loss of one of the most important relationships in his life.
The four pillars of medical ethics are autonomy, justice, beneficence, and non-maleficence. This case arguably touches on all four: M’s autonomy was being overridden, there was no clear fair outcome, and the judge was being asked to decide on his best interests without causing harm. This suggests that the role of the doctor goes beyond a narrow focus on medical outcomes to incorporate the best overall interests of the patient. This is precisely what the judge sought to do.
Two drugs were being considered to sedate M: diazepam and midazolam. Dr B (consultant anaesthetist) and M’s GP recommended diazepam, arguing that midazolam is only used in hospitals in extreme circumstances due to respiratory risks, it is off-license, and it has never been used in the community before. Diazepam would, however, not provide the amnesic effects that midazolam would, and would be more likely to require the physical restraint of M. Although post-operative psychological support was offered, the judge emphasised that this could not guarantee the protection of M’s relationships.
It was interesting to see that the argument put forward by the medics and the ambulance service prioritised the best medical interests of the patient, promoting the physically safer and more common course of action. It was the judge, M’s sister and M’s counsel who emphasised the significance of M’s relationships and so ultimately midazolam was chosen – with the CCG agreeing to source an ambulance and paramedics, meaning that the drug could be administered safely with the fall-back of professionals on site.
It was fascinating to observe the legal proceedings address such complex medical ethics and to see the judge and barristers keep the person at the heart of decision making.
Observing this case was a moving experience – M was brought to life as a whole person, not just a body that required a dental procedure.
Both Martha and Meg refer to this aspect of the hearing: what we might describe as the humanisation of the person at the centre of the issue. It seems that witnessing this has been illuminating for them.
I know that, prior to the pandemic, some sixth forms offered visits to court hearings to witness law in action. The remote nature of COP hearings perhaps offers wider opportunities to inspire and help to develop students’ ethical and moral thinking. This feels ever more important as part of our civic education.
Martha Purdy is a Sixth Form student studying History, French, Maths and Chemistry.
Meg Aitken is applying to study medicine from 2021
Claire Martin is Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin