No decision without representation

By Celia Kitzinger, 11th February 2022

Mr M (who’s been diagnosed with schizophrenia) has ulcers on both his legs. The one on his right leg is getting worse and becoming “malodorous”.  

He refused to allow doctors to assess him when he was admitted to hospital back in October 2021.  

Outpatient appointments were made, but he did not attend them.  

He’s declined to admit the district nursing team to his home and has not attended GP appointments.  

There is no information about the condition of his leg since the end of October, except that the community mental health team (who have visited him) are concerned.

The local authority has made an “urgent” application to the court that it would be in Mr M’s best interests to take him into hospital against his wishes for assessment. This would almost certainly have to involve restraint and deprivation of liberty.

The hearing was before Mr Justice Peel on 8th February 2022 (COP 13883671) and lasted a little over one hour.

The hearing

There were two advocates in court: Ulele Burnham acted for the local authority and Emma Galland for the hospital trust.  

There was no legal representation for Mr M, nor was he in court himself.  The judge said, right away, as soon as this became apparent: “I’m highly unlikely to do anything of substance today, without him being represented”.

There were no position statements (since the case had been fast-forwarded to the ‘urgent’ list) and on the basis of what I heard in court it was very unclear what the evidence was to rebut the presumption that Mr M has capacity to make his own decisions about whether or not to allow clinicians to examine his legs. I think the court determined that whatever the evidence was,  it was sufficient to give the court “reason to believe” on an interim basis that Mr M lacks capacity in this matter (s. 48 Mental Capacity Act 2005).  But the judge also commented that “the Official Solicitor may have a view about the capacity evidence”. 

There was also no medical evidence before the court.  Although the hospital trust was a respondent, they made clear that the hospital had last seen Mr M at the end of October 2021, when he was discharged without any assessment having taken place (because he refused it), with care in the community and outpatient appointments offered.  There was no more up-to-date medical evidence they could provide about the state of his legs.

The judge made it clear that, despite the “serious concern” about Mr M’s health raised by Ulele Burnham (for the local authority), he would not make substantive orders today. 

Judge:  I understand you want to achieve an assessment as quickly as possible.  For me to be satisfied with that, there has to be some opportunity for Mr M through the Official Solicitor, to make representation.  I find it hard to see on the basis of what I’ve read that I could do otherwise. The Official Solicitor needs to be present for these sorts of discussions doesn’t she?

Burnham: My Lord, I would say not.  She’ll be on notice for this application.  It should be rare for this to happen, but it is the concern of the local authority that he should get to hospital quickly.

Judge:  What does ‘quickly’ mean? This has been going on since October.  I appreciate the situation is getting worse, but are you telling me that this very second Mr M needs to be taken to hospital for assessment, with a deprivation of liberty as part of that, since it appears, based on previous events, that he would not go willingly.  These are very dramatic and significant orders to make in his absence.

Burnham: The problem is that the condition has been getting worse. There is a risk of amputation. There is a risk of death.  The local authority seeks as best it can to do its duty and it simply doesn’t know how serious the position is.

Judge: That’s exactly the problem you are dealing with.  You were right to bring this application, but you don’t have medical evidence, so you’re dealing with this slightly in a vacuum, and that makes it very difficult for you to put forward any cogent evidence that if he doesn’t have an assessment this afternoon it might have life-changing consequences.  It’s the absence of up-to-date clinical evidence, combined with the absence of Mr M who isn’t here and isn’t represented, that prevent me from making the orders you are seeking today.  I can’t see how I could be persuaded to go down that route.

The judge went on to detail what could be done today: directions for medical evidence from the hospital, appointing the Official Solicitor as a litigation friend for Mr M, and making arrangements to bring the case back to court “in pretty short order”.  

Ulele Burnham suggested provision of a “transition plan” in time for the next hearing. The judge asked what that meant.  “How he’s going to be conveyed or transported, and are we countenancing restraint, and what would we do if he physically resists”.  “That seems sensible to me”, said the judge.

Other matters to address before the next hearing include: What would the assessments entail?  What restraint might be necessary not just for “conveying” him from home to hospital, but also to overcome any resistance to having his legs assessed? What treatments might be possible?  What about his future care and residence?  And I think a third party disclosure order was made (or perhaps only discussed and postponed for consideration at the next hearing) concerning Mr M’s medical records.

The judicial decision

In a closing statement, Mr Justice Peel said it would be “wholly inappropriate to make substantive orders of the sort requested by the applicant in the absence of representation of the patient and in the absence of up-to-date medical evidence.  It is apparent to me that the furthest I should go is to make directions enabling the case to be brought back next Monday, by which time the Official Solicitor will be engaged. Once the Official Solicitor is involved, I suspect this case will take shape rapidly.

He pointed out that if there were to be “a true emergency” before the date of the next hearing, then it could be brought back in the proper way for an out-of-hours or emergency hearing.

The next hearing is listed for 10.30am on Monday, 14th February 2022.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

5 thoughts on “No decision without representation

  1. This is very valuable information. As an IMHA/IMCA I have dealt with similar cases,and one in particular which matches much of the profile of this case. In my case the client and his wife were hoarders and would not let anyone into the house. The LA escalated to the point where ambulance police and fire wd be present for a forced entry and Sectioning. In an MDT of ten “professionals” I successfully argued for advocacy (me) to be given time to obtain their trust and allow the District Nurse team in. Several weeks of ‘phone contact eventually yielded an invitation for me to visit and subsequently they were voluntarily moved to step-down so that the squalor could be cleared. Unfortunately the gentleman’s legs had deteriorated to the point where he could not walk, but then having the door broken in with emergency vehicles parked up would have mortified them and tipped them over the edge.


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