By Claire Martin[1], 24th February 2022
A man in his 40s, Mr M, has severely ulcerated legs and he is reported to be declining or avoiding medical assessment. He has a long-standing diagnosis of schizophrenia and depression and is said to be addicted to Class A drugs (heroin and/or crack cocaine). He lives in supported living accommodation.
This application is made by the local authority with responsibility for providing Mr M’s s.117 care and support package. His social worker made a statement in support of the application. The Official Solicitor commented that the social worker’s attempts “to protect Mr M’s health, and his sense of being powerless to do so, come across clearly. It seems that he feels driven to make this application, believing it to be the only way to avert amputation”.
We have blogged about other amputation cases here, here and here – and amputation is a potentially foreseeable outcome of the next hearing (depending on what the assessment of the legs reveals about treatment options).
This case (COP 13883671) was before Mrs Justice Theis at 2pm on Monday 14th February 2022. The Local Authority was represented by Ulele Burnham, who provided a helpful ‘thumbnail sketch’ (at the judge’s request) to the history of the case:
This is an application brought by Local Authority on 3rd February 2022 concerning an application to remove P and have him conveyed to hospital and detained there by force if necessary for assessment of his ulcerated legs. The Local Authority has been trying for some time to persuade P – he also has an arm amputated and is said to be an IV drug user – it has become more worrisome and he has been declining to have it examined by the district nurse. The reason for Local Authority concern is that those who visit say that the wound is becoming more malodorous and he has refused any offers to have it assessed. The Local Authority has sought to have contact with clinicians when he was taken for treatment for his leg in October 2021. The Social Worker was not provided with any significant guidance about what to do … and the Local Authority felt bound to place this matter before the court as they have very grave concerns about sepsis and the risk of amputation if not attended to[2].
At a previous hearing before Mr Justice Peel on the 8th February 2022 (blogged here) Mr M had been unrepresented and the case had been adjourned to secure representation for Mr M via the Official Solicitor (Katie Gollop) and for the NHS Trust to provide more information about his clinical situation (as far as it was possible to know). The applicant Local Authority was also directed to provide a skeleton transition plan, pending an order that Mr M could be taken to hospital for assessment.
Celia Kitzinger notes the following exchange in her blog about the first hearing for Mr M:
Mr Justice Peel: 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. [from No decision without representation, the previous blog about this case]
Today, Ulele Burnham referred to this first hearing as ‘slightly abortive’. The position of the Local Authority was that, on this occasion (at the last hearing), representation for Mr M was not necessary for an order to be made for medical assessment. The application was being made urgently, and of course there will be very urgent situations when action does need to happen, but this case did not appear to be of those:
Mr Justice Peel : 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. [from No decision without representation, the previous blog about this case]
What has been happening for Mr M?
The current situation for Mr M, in terms of accessing health care, is that he was last seen in hospital in October 2021 and has not been seen by district nurses since, as he tends to go out when they are due to see him. He is reported to have developed ‘circumferential’ leg ulcers around January 2020, which have now become infected. He prefers to dress them himself using pillowcases and rags. One leg is now said to be very swollen and he cannot get a shoe on it, and the ulcers are reported to smell badly. However, a vascular surgeon has advised that the smell does not necessarily indicate infection, and that fever is more of a risk indicator (for infection and urgency of treatment).
Mr M was diagnosed with schizophrenia in 2006 and has also had an arm amputation (reportedly due to ‘non-compliance with medical advice’). He does not have any family to support him and is not known to have friends either. He receives a lot of support from the workers in the supported living home where he lives on the first floor.
Katie Gollop, counsel for the Official Solicitor, described Mr M as a ‘sweet and charming gentleman’ who ‘goes out and begs and then he spends the money on heroin – and because he’s only got one arm, he can’t inject it into his arm so he injects into his legs. He injects into the open ulcers because he gets swifter access that way.’ This sounded excruciating to me and I could see that others in the hearing might have had a similar visceral response. When there have been attempts to speak to Mr M about his leg ulcers, he is reported to say that he thinks there is nothing wrong with his legs, which would explain why he declines to accept offers of district nurse and hospital appointments.
In October 2021 a rehabilitation psychiatrist assessed Mr M’s capacity to make decisions about the medical treatment of his leg ulcers and found him to lack capacity to make this decision – based on an inability to use and weigh relevant information. Following this, Mr M did go to hospital (in October 2021):
Judge: Am I right that previously, P had been compliant with a visit to hospital?
Burnham: Yes, the crucial circumstance was the police were in attendance and explained to him there was a record of his capacity and he was encouraged to get into the ambulance and he did so with some persuasion. It would probably have been difficult for him to physically resist but he didn’t appear to physically resist. He was guided to the ambulance without further incident.
There was an urgent Deprivation of Liberty authorisation, but Mr M left the hospital twice and apparently on 27th October 2021 the hospital discharged him ‘without prior warning to the applicant [Local Authority]’.
So, since that time it seems that there has been a lot of liaising between the Social Worker/care home and the hospital (including advice from a vascular surgeon and contact with the mental health team in the form of a further capacity assessment by an Occupational Therapist, in January 2022). It was unknown whether talk of an IMCA (Independent Mental Capacity Advocate) had been acted upon in November last year.
The assessment, we were told, would be ‘visual’. The reasons given by the NHS Trust for requiring assessment at hospital rather than at home were that Mr M tends to go out when professionals arrange to see him at home. Further, the lighting at home is not good enough for an adequate visual assessment of his legs and the environment is not sterile. The Official Solicitor was satisfied that the proposal to transport Mr M to hospital was proportionate.
It wasn’t clear to me how efforts had been made to discuss the leg ulcers with Mr M – although it was clear from the hearing that his Social Worker had made repeated efforts to do so.
Katie Gollop submitted that ‘having spoken to two members of staff who work at P’s accommodation [there is] sufficient evidential basis for an interim declaration that there is reason to believe that Mr M lacks litigation capacity’ and that ‘his thinking is driven not so much by schizophrenia but addiction to Class A drugs’. It did not seem, however, that a definitive assessment had been completed addressing litigation capacity and this was suggested to be necessary by counsel for the Official Solicitor.
Mr M’s voice and views were conspicuously absent in this hearing – other than a clarity that his actions suggest that he prefers to avoid medical assessment and intervention (and that this seems to be a longstanding attitude, given the information about his arm amputation ‘several years ago’). Katie Gollop clearly stated that, even with assessment of his leg ulcers and medical recommendations, it is far from straightforward to determine his best interests – Mr M uses a crutch to walk about, and the loss of a leg (if this were the medical recommendation) would make getting about extremely difficult for him. It might mean he had to leave his current home, and he might not adjust to prostheses (if these were possible).
What was the outcome of this hearing?
Mrs Justice Theis agreed the order that Mr M should be taken to hospital (forcibly if necessary) for assessment of his leg ulcers. She ordered that the case should come back to court on Friday 11th March 2022 for a further hearing to establish Mr M’s litigation capacity, and (if necessary) to determine his best interests in relation to treatment of his leg ulcers.
The judge was concerned to establish the details for the ‘conveyance’, Emma Galland (counsel for the hospital trust) set out the hospital’s proposals, which include arranging for the police to be present for the transfer to hospital:
Galland: [Mr M would be] conveyed to A&E, there would be a flag on his medical records, so that the consultant vascular surgeon would be aware and do the transfer from A&E to ward.
Judge: I want more detail as to the underlying practicalities. I suspect there is one realistic opportunity to do what this order hopes – assessment, advice and discussions, but busy professionals with changing rotas and times and things, and there needs to be a drilled down recital that sets out what’s going to happen. … The order needs to be redrafted to have more details in the recital. It needs some more thought. At the moment the order takes [Mr M] to hospital and then there’s an assessment and then a hearing fixed. All of that presumes there’s going to be cooperation but given the context of drug addiction I doubt it’s going to be that straight forward.
The hearing broke at around 2.30pm to enable counsel for the applicant to amend the draft order and what she called the ‘conveyance plan’, and reconvened at 3.23pm.
The revised order included the possibility of needing an anaesthetist at the ready ‘in case they need to sedate him to assess or treat him’. Katie Gollop asked that the words ‘will be given diazepam’ be changed to ‘may be given diazepam’.
There was discussion of providing the court order to the ambulance service and to the police, and the need to ‘tidy up’ how it was written, since, the judge said:
“If I was an ambulance driver and I was given this order as a framework to operate in, I wouldn’t be very sure about what I could and couldn’t do. It needs to be clear to each of the people who are going to have this order as to what they can and can’t do” (Theis, J)
It was established earlier that the use of the Mental Health Act was not relevant, since the proposal was for assessment and treatment of physical health (“the connection between his impairment and amputation is too remote for the Mental Health Act”, Emma Galland). The Deprivation of Liberty authorisation was therefore key in ensuring all professionals charged with caring for Mr M on the day he goes to hospital understood the scope and limits of their authority to act. I left the hearing feeling quite unclear about exactly how a paramedic or police officer, for example, would be allowed to restrain or sedate him, and anticipate that this level of detail would be in the final order sent to the judge for approval.
Final Thoughts
I felt quite sad at the end of this hearing. Mr M’s case had come to court ‘urgently’ the week before (though he has had leg ulcers since 2020), without him being represented.
Though he was represented at this hearing, no one had managed to engage Mr M in thinking about himself (he’d left the house shortly before the time when the agent for the Official Solicitor had gone there to meet him, by appointment). As a result, we had no idea what he thought about the prospect of being ‘conveyed’, potentially against his will, to hospital for assessment of his legs. Had Mr M been told that this hearing was happening? Might he feel frightened at this suggestion? If he knew that the assessment in hospital might be ordered anyway, might he have views on people from his home whom he would like to accompany him, to help him cope with it? Were any of Mr M’s care workers asked to give evidence? Was he offered the chance to meet with the judge?
It seemed likely that Mr M wouldn’t want to engage, but we didn’t hear about wider efforts to include him. This recent guidance from the Vice-president of the Court of Protection notes s.4(4) Mental Capacity Act 2005, that efforts to include Ps ‘must’ be made:
“A judge meeting with P can achieve a number of important objectives, including (where P lacks capacity) their participation in ‘best interests’ decision-making, as required by s.4(4) Mental Capacity Act 2005. Which provides:
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
It is important to emphasise the mandatory nature of this obligation”.
The Official Solicitor had instructed an agent to try again to make contact with Mr M prior to the hospital appointment, which I felt very pleased to hear.
I did wonder whether any other form of engagement with Mr M had been considered (apart from the vague mention of an IMCA). Mind and Rethink both offer advocacy services. These might have been tried of course, and not discussed in the hearing. Had Mr M been made clearly aware (over several occasions) of the potential consequences of treatment or no treatment? Again, he might have been and have been unable or unwilling to join in with this sort of conversation. It is important to note that, just because he has a diagnosis of schizophrenia does not mean he could not understand these issues. So, what is the reason for his proposed lack of capacity? The submission was his drug addiction.
Kate Gollop suggested that “his ability to use and weigh information about depriving him of his legs or healing his ulcers is affected by the fact that either would inhibit his drug-taking activity on which he’s clearly dependent on a daily basis.”
Was the medical situation so urgent that time cannot be given to working out who else might be best placed to help him understand the situation further? I kept thinking that he had managed to avoid seeing health professionals for so long (since October 2021) that he might have no idea what was in store for him, should he continue to give everyone the slip.
I have been thinking about Mr M’s life as a whole – is he the sort of person who just does not want to engage with the healthcare system? If he were deemed to have mental capacity to make health care decisions, he would be allowed to refuse any and all assessment and treatment.
From a medical perspective, it is clearly the best option to at least assess what is happening with Mr M’s legs and recommend (and, if necessary, offer) treatment. The consultant vascular surgeon has advised that general treatment options could include above the knee amputation, debridement or meticulous wound care. Whether Mr M himself – when capacitous – would agree to this is another matter, and at present we do not have much to go on in terms of his wishes and values.
Katie Gollop noted that, if amputation is recommended, clinically, as the most appropriate action, then consideration needs to be given to, and balanced against, making a best interests decision. The impact on Mr M’s mobility, access to the outside world, capability to adjust to the physical demands of an amputation, the psychological impact and how his drug addiction could be managed are all relevant factors in a best interests decision for him, should it be declared that he does lack capacity to make this decision for himself.
The case comes back to court on Friday 11th March 2022, and, in the judge’s words will last for a ‘day less an hour’. We are not sure if it will be remote, hybrid or in-person. Look out for the listed hearing on our Twitter account and on the home page of our website where we post “Featured Hearings”
Claire Martin is a 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
[1] Thanks to Celia Kitzinger and Aura Mackintosh Bamber, with whom I (virtually) observed this hearing: reading our private messaging conversation has helped me to remember reflections as we went along. Thank you also to Katherine Newman-Taylor, Consultant Clinical Psychologist (Hon), Associate Professor, and Lead for PG Diploma in CBT (Severe Mental Health), University of Southamptonfor helpful discussion about capacity and people who experience psychosis.
[2] I would like to thank Celia Kitzinger for her detailed notes from the hearing, which enabled me to cross-check against my own notes for accuracy of quotes and information. Nevertheless, some quotes are likely to be paraphrased or with substitute words, as we are not allowed to record hearings and we rely on typing up our notes as quickly as we are able during the course of the hearing.
Photo by Steve Johnson on Unsplash
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