Claire Martin, 24th March 2022
This is the third in a series of hearings concerning Mr M, a man with severely ulcerated legs who is 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.
The first hearing was a result of an ‘urgent’ application by the Local Authority on 8th February 2022, to take Mr M (forcibly if needed) to hospital for assessment of his leg ulcers. The hearing (blogged here by Celia Kitzinger) was adjourned because Mr M had no representation.
The second hearing was on 14th February 2022 (blogged here). This time, Mr M was represented via the Official Solicitor (Katie Gollop QC) who supported taking him to hospital for assessment. Mrs Justice Theis approved the order that Mr M should be taken to hospital (forcibly if necessary) for assessment of his leg ulcers and ordered that the case should come back to court the following month to determine his best interests in relation to treatment of his leg ulcers (and also to establish his litigation capacity).
The third hearing , on 11th March 2022 – again before Mrs Justice Theis – is the one I’m reporting here.
I was expecting to hear about how Mr M had fared being taken to hospital against his will, what the recommendations were for his ulcerated legs and which one of those recommendations the court would decide was in his best interests. None of these issues was discussed at the hearing.
I did learn that Mr M was still in hospital and that medical recommendations for treating his legs were still to be made. In addition, there was a possibility Mr M is “moving along a spectrum from being unable to make a decision to having capacity” (Kate Gollop).
It was also stated that Mr M cannot go home, though he is ‘clinically fit’ for discharge from hospital. So an interim place to live is needed, but it seemed that no one has started to look for this yet. I don’t know whether Mr M was thought to be able, or moving towards being able, to make a decision about that for himself.
So, what looked like a (relatively) straightforward decision about treatment for a leg has metamorphosed into a much more complicated multi-agency case about capacity, residence, health, and care.
The hearing: 11th March 2022
Mr M had been taken to hospital on 21 February 2022, a week after the previous hearing at which the judge had authorised it. There was no discussion about how this went for Mr M. I was hoping it had been conflict-free for him and he wasn’t distressed by the whole experience.
A consultant vascular surgeon had examined his legs and said that there was currently “no clinical urgency to treatment” but that the infection of his legs, if combined with “non- compliance” with community treatment, could lead to sepsis and death.
I was quite surprised that Mr M was still in hospital, and that clear medical recommendations were still to be made – he had been there for two weeks and four days. Katie Gollop (counsel for Mr M) said that:
“The longer he stays in hospital the more communicative he becomes. The Official Solicitor [reports that] as time has gone on, he will engage with them and is forming some relationships, and is beginning to talk about his legs. He’s said ‘You’ve had an arm you’re not taking a leg’. When explained that he might die without amputation. He says, ‘That’s [his own first name] decision when the time comes’. He doesn’t want to hold on to his leg at all costs. If the schizophrenia is NOT causing an impairment of thinking and if his drug dependency lessens, then it appears that he is moving along a spectrum from being unable to make a decision to having capacity. That may have implications. There simply isn’t sufficient evidence that he doesn’t have capacity to make a decision for example about where he lives, let alone these other matters. It’s not an emergency now.”
Mr M was willingly taking antibiotics for his infection and that was”‘holding the ring” (Kate Gollop), and the infection had not moved into the bloodstream.
Mr M had been seen and assessed by the medical team. (An independent expert, Mr John Scurr, consultant surgeon had attempted to assess him, but Mr M had refused to speak to him, pulling the sheet over his head. Katie Gollop said that the independent expert’s report was “not very helpful and simply said amputation is the way forward”).
The medical view, said Katie Gollop, had changed:
“Last time [it] seemed very clear: there was one single recommendation from the Trust – amputation. Subsequently, [in a] surgical MDT this week which comprises a lot of surgeons, seven I think, [they were] divided as to the best way forward. There isn’t a consensus, [there is] more flexibility as to the best way.”
I did wonder why it was that Mr M had been in hospital for 18 days and clear medical options had not been reached, especially given that this 11th March 2022 hearing had been planned in advance (my understanding was that this was originally meant to be a final hearing).
Emma Galland (counsel for the NHS Trust, The Royal Free London NHS Foundation Trust) later clarified with Mrs Justice Theis:
EG: The discussion in the consultant body this week was not an MDT – it was a superficial discussion. The result was that five thought above knee amputation was not supported, and two thought that it was. After an MDT meeting this morning I haven’t heard yet – to consider the options.
Judge: The five who did not support what did they support?
EG: It was a straw poll not a proper MDT meeting. I met with the wider team – his [the consultant vascular surgeon, I think] view was that the ulcer has been there a long time, he can weight bear, given the obvious impact on quality of life if the leg is removed where there is no significant risk, then at this time he wouldn’t consider an above the knee amputation. He didn’t go into detail about other options. I didn’t see Mr M but I heard him clearly and loudly expressing his views. One nurse has been allowed by him to change his dressings – she has had discussions with him about his preferences. She thinks he is becoming more capacitous. ….. I’ve just had an email – the MDT is next Tuesday 15 March.
During his time in hospital Mr M has been assessed by two consultant psychiatrists, both of whom agreed that Mr M did not retain capacity to make decisions about his physical health. He has also been seen by the ‘drug abuse team’ and prescribed methadone, which he was taking.
Lots more things were being considered than the initial urgent application to take Mr M to hospital for assessment of his legs: life for Mr M after medical treatment or surgery, and capacity to litigate and make decisions for himself about his health, care and where he lives.
An advocates’ meeting had agreed that further information was needed: recommendations for surgical treatment, further capacity assessments and updated information about mental health treatment, as well as options for future social care provision and the possibility of re-ablement/rehabilitation therapy. Everyone seemed to think it was clear that Mr M couldn’t go home to where he’d been living – the NHS Trust position statement said: “… it is noted and accepted that he will not be returning to his previous accommodation”.
I felt a bit confused about this as we were told at the last hearing that he could navigate the stairs currently, and did so regularly to go out and source drugs. This wasn’t addressed further and discussions were focussed on discharge, which bodies had responsibility for what, and the timetable for decisions.
‘Energising’ the CCG
Since Mr M is no longer being assessed in hospital (the purpose of the previous order to take him there and deprive him of his liberty), there is now no legal framework keeping him there. The applicant Local Authority was concerned that the CCG would not be willing to assess Mr M while he was still in hospital, but that discharge (with increased healthcare needs) depended upon Continuing Healthcare funding (via the CCG)
The CCG has now been joined as a party, represented by Eliza Sharron, who said:
“There hasn’t been any direct referral from the Trust in relation to discharge – [he] is not on any list for medical discharge. It wasn’t until the pre-hearing discussions today that interim medical discharge was being considered. We need to consider the relevant funding streams that would be appropriate. The CCG is not saying it would not be involved but it would be the discharge to assess pathway [see NHS definition of this term here] at the moment, to identify appropriate places upon discharge. The CCG will be partly dependent upon other parties as to assessment of capacity on discharge. Timeframe – I don’t have instructions but the CCG can work within it by looks of it.”
My understanding is that the CCG will be responsible for funding any interim continuing healthcare needs for Mr M, before medical recommendations for his legs are made, further capacity assessments are completed, and (should he be deemed to lack capacity for medical decisions) a best interests judgement is made about treatment for Mr M’s leg.
There was talk of whether the Mental Health Trust needs to be joined as a party. Eliza Sharron explained:
ES: Health and Mental Health needs to be joined up. The CCG would anticipate working with the NHS and the Mental Health Trust to identify an appropriate package of care upon discharge.
J: Does the MH Trust need to be joined?
ES: We are allowed to notify them of proceedings but not be joined. The Trust is directed to file a substantial body of evidence. They may wish to make representations on the evidence sought.
The applicant Local Authority has responsibility for Mr M’s Section 117 aftercare (any care that is needed in the community following detention under Section 3 of the Mental Health Act 1983) and it was Mr M’s social worker who originally grew increasingly concerned about Mr M and the condition of his leg, prompting the urgent application to the Court:
Ulele Burnham: I can see the sense in Ms Galland’s position [that Mr M cannot remain in hospital whilst a recommendation for treatment of his leg is decided] … coordination has been missing in this case. There is commission of Section 117 services and also clinical needs. Whatever the situation that emerges there is unlikely to be a position where the clinical position does not guide the way forward.
The impression I got was that the CCG was being somewhat recalcitrant and reluctantly included in Mr M’s provision of care, given that the Local Authority had, up to now, been fully responsible for funding Mr M’s care in the community. Eliza Sharron, for the CCG, said that the NHS Trust hadn’t made any referral to the CCG for assessment for discharge. As Ulele Burnham said, coordination seemed to be missing for Mr M.
Mr M was still in hospital after 18 days (albeit without apparent complaint), there was still no clear medical recommendations, and he was to be discharged to a new place to live but the relevant bodies had not organised themselves to facilitate this or assess his wishes or capacity to make the decision himself. I wasn’t sure from this hearing who was meant to be doing capacity assessments with Mr M for litigation capacity, decisions about his legs, where he lived and what care he needed. Mr M’s voice about what he would like for himself was certainly absent at this hearing.
I lost connection for 10 minutes as we neared the end of the hearing. As I rejoined, Counsel and the judge were discussing the intricacies of the draft order, and what would be included in recitals:
Judge: … craft something in the recitals that energises the discharge planning – with an outside timetable and if parties can come up with a package that can take place beforehand. Miss Burnham …. You are here as the applicant but essentially here as a spectator. … there should be a direction in the order that the CCG will step in to the lead role in the proceedings – and if not, to explain why.
Mrs Justice Theis was clearly alive to the fact that multi-agency involvement runs the risk of a metaphorical passing of a hot potato.
The next hearing is planned for Friday 8th April at 12noon.
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
Note: I would like to thank Ulele Burnham, Emma Galland and Katie Gollop QC for sharing the position statements for their clients, on which I have drawn. I’m also grateful to Ulele Burnham for providing me with the Transparency Order.