By Claire Martin, 12th April 2022
Mr M is still in hospital. He has now been there for 40 days.
He was originally taken to hospital under court order for assessment of his ulcerated legs, to enable medical recommendations to be made.
At this hearing (12 noon, Friday 8th April 2022, COP 133883671) before Mrs Justice Theis, I was again expecting to hear about Mr M’s discharge from hospital, but he was still there.
Medical assessment and recommendations have now been made. There is only one treatment option: regular and frequent (3 times a week) dressing changes to Mr M’s ulcerated legs. Neither amputation nor debridement is required. It is likely that the ulcer will never heal and that Mr M will remain at risk of repeated infection and deterioration. So, how he is cared for in the community and helping him to understand and make decisions (if possible) about his needs and care are very important.
The obstacle now is the parties involved in Mr M’s care working out a solution, either with, or for, Mr M about where he lives and how his needs (in full) can best be met. There is a suggestion that he might regain capacity to make decisions about his medical care and where he lives. Mr M’s mental health issues are very relevant to these decisions, but the Mental Health Trust (whilst agreeing to complete a further capacity assessment and join in with care planning) is resisting becoming a party to the proceedings.
Ulele Burnham (counsel for the applicant local authority) was in agreement with the Official Solicitor that the Mental Health Trust should be joined as a party to proceedings, submitting:
“One of central issues we think – possibly the issue we think ought be determined by court today – is the question of joining the mental health trust. My lady, that is in essence, strictly speaking, Ms Gollop’s application. … I support the submissions made by Miss Gollop. The engagement and assistance provided by a mental health legal team … it’s not an easy situation for clinicians to get through on their own. I don’t want proceedings to be more protracted than they have been”.
Theis J asked “I have seen Ms Gollop what you have said. This has been raised with the mental health trust. They think there is no need to join them. Why do you say it’s necessary if they are willing to do capacity assessments, as they say?”
Katie Gollop QC (counsel for the Official Solicitor) replied: “It’s not just about capacity evidence – it’s about the proper coordination, in the proper way. We need the mental health trust to have input in that and have discussions. … All parties felt underwhelmed by the capacity assessment provided by [mental health trust psychiatrist]. It will assist with discharge planning – at the moment it is somewhat uncoordinated. The physical problem – the driver for application – has fallen away. Only one treatment is on offer for this issue. At the start that was amputation. [Mr M] has just finished a course of antibiotics. Dressings is the important bit. Coupled with the fact that the vascular surgeon has formed view that it’s chronic, unlikely ever to heal. The mental health problem and the drug dependency, in tandem with the wound presents a significant challenge. Mental health really will be an important part of discharge ongoing. More important than the current NHS Trust. [there are implications for] deprivation of liberty, in future. If impairment is solely dependent on drugs, then it may be subject to a proper understanding of what exactly he needs – the Mental Health requirement in Section 1 of the Mental capacity Act (the requirement for deprivation of liberty) may be lacking. That will be useful for the kind of planning we need. It will be greatly helped by having the mental health trust there to assist in those discussions.”
Counsel for the NHS Trust (Emma Galland) and for the CCG (Eliza Sharron) were neutral on this issue. I thought that was curious. Since the CCG would be funding some of the care for Mr M, I thought they would have had more of an interest in the mental health trust adopting a more active role.
Theis J agreed with Katie Gollop QC: “I think it does need the mental health trust to be joined. It will underpin the legal advice in the discharge plan. I am satisfied that they should be joined.“
The remainder of the hearing was discussion between all parties and the judge about what should be included in different paragraphs and as recitals in the draft order, by when parties should have filed their evidence and setting the date and time of the next (and I think, final) hearing.
It was said that the question of Mr M’s mental capacity to decide about where he lives and medical treatment was connected to the “substance dependency rather than his psychotic illness”. Mr M apparently willingly takes the psychiatric medication that he is prescribed and his psychosis is not the reason for the mooted lack of capacity for the decisions before the court.
So, the issues that remain, for the Official Solicitor representing Mr M, are:
- a further capacity assessment to enable the court to make a judgment on Mr M’s capacity for the decisions he faces;
- following a suggestion from the psychiatrist who completed the previous capacity assessment, information about whether an anti-depressant is to be trialled and if not, why not;
- evidence about mobility and wheelchair use – this is currently a completely grey area for the court;
- a plan from the hospital about the threshold for future admission for ulcer treatment;
- evidence from the parties as to whether it is proposed that on discharge, Mr M should be deprived of his liberty to ensure that wound dressing changes and ulcer monitoring continue and/or to prevent further illicit substance abuse;
- if deprivation of liberty is not proposed, a robust plan for care in the community.
Even though Mr M’s care and treatment are taking a long time for the different agencies to organise, the snippets of information in the hearing about how Mr M is faring suggested that he is not finding his time in hospital an aversive experience. He has gradually become more able to speak about how he is (the Official Solicitor’s agent visits him regularly). He can sustain a conversation for longer than when he was first admitted to hospital and he has started to ask her how she is doing. He has not shown interest in others until recently. There is understandable consternation regarding how Mr M would fare in the community without the structure and 24-hour monitoring that a hospital environment provides. It is likely that he might return to drug use and avoidance of care for his ulcerated legs. This would restart the whole process of admission to hospital (and the question of his capacity to refuse) and could end up in court again.
Equally, Mr M’s human rights are compromised by the lack of coordination, clear assessment and adequate planning for his care. I was struck by how little the court knows, even now. Mr M’s own voice remains conspicuously absent in proceedings. His mobility, even whether he can walk at times or requires a wheelchair to move about, is not known. If he does require a wheelchair, it was unclear whether an assessment had been done to establish the correct wheelchair. Given that he has been in hospital for 40 days – at a huge cost to the NHS, when Mr M is said to be ready for discharge – I would have thought that assessment for his likely future functioning and needs (including correct equipment and support) might have been a priority for the NHS Trust. Especially, as Katie Gollop QC noted:
“The Official Solicitor is very conscious that public bodies are financially stretched and its employees’ time is also scarce. At the same time, Mr M is very vulnerable: his chronic problem of an ulcer that is unlikely ever to heal, coupled with the risks attendant on him being drug dependent, is a difficult one to manage. Co-ordination and timely provision of information are essential.”
The next hearing, which I think is intended as a final hearing (though it is only scheduled for an hour) is on Friday 20th May 2022, 12noon. I am intending to observe.
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
 Thank you to Katie Gollop QC for providing me with the final Position Statement for Mr M via the OS. I have drawn on this to write this blog.
 We are not permitted to audio- or video-record court hearings. Direct quotations of what was said during the course of the hearing are as accurate as possible, based on my contemporaneous touch-typed notes but are unlikely to be entirely verbatim.