By Celia Kitzinger, 29th April 2022
“Although his wishes and feelings are not to have this operation, those wishes and feelings are based on delusion… I give less weight to his views for that reason.”
So said Mrs Justice Arbuthnot at a hearing on 28th April 2022 concerning a man in his late 50s (Mr SH) with schizoaffective disorder, Type II diabetes and gangrenous toes on his left foot.
He is refusing surgery because he doesn’t think he needs it.
It was reported in court he’d told the Official Solicitor’s agent that he is firmly opposed to surgery. He said that God has already healed his foot and that the blackening of his toes as a result of necrosis is simply dried blood which will dissipate. He also said that doctors are lying when they say that he needs treatment.
It’s not unusual for the Official Solicitor to take a position contrary to the views of the person at the centre of the case in the Court of Protection. People deemed to lack mental capacity to conduct their own litigation proceedings do not have the freedom to instruct their legal team to present their position for them. Instead:
“The current practice in the Court of Protection looks to the litigation friend not to represent P in any conventional sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests”. ( “Litigation Friend or Foe”).
In this case, the position of the Official Solicitor (Debra Powell QC) did not reflect Mr SH’s views (opposing surgery). Instead, she said that it was in Mr SH’s best interests to have the treatment proposed, even if sedation and force have to be used to take him to hospital and to enable the surgery to be performed.
If you’re deemed to lack litigation capacity, this can have a devastating impact on the way your lawyer presents your case in court – especially when the subject-matter choices you make are considered by others to be unwise.
The hearing was originally listed to start at 2.00pm – but I received an email telling me it would be delayed until 2.30pm and in fact it didn’t begin until 3.10pm. The judge apologised, saying that her previous hearing had run over. We didn’t end until about 5.30pm.
After Mrs Justice Arbuthnot talked observers through the requirements of the Transparency Order, counsel for the Trust provided a very helpful summary of the case, which segued seamlessly into an opening submission.
The Trust: Nageena Khalique QC,
The applicant Trust was seeking an order to enable it to perform surgery under general anaesthetic to improve the blood flow to Mr SH’s foot (angioplasty), and to remove dead tissue (partial amputation of the left big toe, and the second toe, plus debridement of the remaining toes on his left foot).
Mr SH has “enjoyed a reasonable amount of independence and mobility”, said Nageena Khalique QC, but now, due to the pain in his foot, he is no longer able to do things that matter to him – including “getting out and about” and “going to the shops”. He’s been in considerable pain, and although he didn’t want to go to the hospital emergency department, he went just a week ago (admittedly, after staff said the police would be called if he didn’t get in the ambulance) and it was found on examination that the blackened skin now extends over a larger area than on previous examination two months ago, meaning that the gangrene is progressing and he risks further spread, leading to a possible need for below-the-knee amputation, or even possible sepsis and death.
There seems no doubt but that this clinical treatment stands the best chance of saving Mr SH’s leg, and hence his mobility. But he believes that (without treatment) his leg will get better and “in two or three weeks I’ll be running on it”.
The evidence is that his decision-making ability is affected by “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1) Mental Capacity Act 2005) which means that he is not able to understand, retain, or weigh information relevant to making the decision (s.3 Mental Capacity Act 2005).
His mental health problems are long-standing. He began attending psychiatric care in 1995 and has had a number of inpatient admissions, most recently for 6 months ending in June 2018 when he was discharged to the current mental health home where he’s settled. He is “largely compliant and responds well” to the anti-psychotics he’s prescribed, but has some “residual, treatment-resistant psychiatric symptoms” which include religious delusions.
Mr SH believes that he can free people from sin. When he suffers from tremors he believes these are acts of God. The Trust’s position is that Mr SH lacks capacity by reason of these “religious, grandiose, delusional, symptoms”. Nageena Khalique QC said: “he’s unable to accept that his toes are poorly or that he needs any treatment for them, and has an unshakable belief that God will make him better”.
Mr SH also has a fear of the Hospital where the Trust wants him treated as his mother died there following infection and sepsis due to a retained swab that had been left in situ after an operation. This, said Nageena Khalique QC, is an “understandable fear”, but she emphasised that “the primary driver [behind his refusal of surgery] is his delusional thoughts and his belief that God will heal his toes”.
If, as the Trust believes, Mr SH lacks capacity to make a decision for himself, then a best interests decision needs to be made on his behalf.
It is clear that the angioplasty, amputation and debridement would produce the best clinical result. A consultant surgeon has written a witness statement to that effect, and was standing by to give oral evidence.
Surgery would enable Mr SH to regain his mobility and hence enhance his quality of life, and thereby also improve his psychological health (according to the consultant psychiatrist witness statement).
It’s unlikely Mr SH would resist, or require restraint for the surgery to be carried out – he has, after all, complied previously with staff telling him to do things he doesn’t want to do. But if restraint were to be required, the consultant anaesthetist (another witness) has offered to visit Mr SH in the care home and ensure it is carried out by someone other than his regular careers (so that they do not lose his trust).
Of the available options, the Trust position is that a general anaesthetic on just one occasion, enabling all the surgery to be carried out at the same time, would be in Mr SH’s best interests – and far better than doing nothing (which is what Mr SH wants), or carrying out the surgery in two stages (first the angioplasty, then the toe amputation and debridement) – necessitating two separate general anaesthetics. Nobody is proposing a below-the-knee leg amputation at this stage, although that was likely to be the outcome in the future if no treatment was delivered now.
Finally, Mr SH’s brother had been consulted and agrees with the Trust’s position.
There followed an awkward discussion of the fact that – as it turned out – Mr SH’s capacity to litigate these proceedings had not been assessed. The consultant psychiatrist who assessed Mr SH’s subject-matter capacity (i.e. his capacity to make decisions as to medical treatment) did not properly assess his litigation capacity: “she candidly says she didn’t discuss litigation in any detail”.
Lacking empirical evidence (from a capacity assessment) that Mr SH does not have capacity to instruct a lawyer himself, Nageena Khalique QC drew on ‘in-principle’ arguments from case law. This boiled down to the claim that since Mr SH lacks subject matter capacity, he is “highly unlikely” to have litigation capacity.
“Whilst it is not difficult to think of situations where someone has subject-matter capacity whilst lacking litigation capacity, and such cases may not be that rare, I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go so far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity.”
Mostyn J then said (and was quoted by Nageena Khalique QC):
“I would go further and say that it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination.” (Mostyn J, §33 Re P  EWCOP 27)
The suggestion was that this ‘in principle’ argument – that since Mr SH lacks capacity to make a decision about medical treatment, it would be illogical to imagine that he has capacity to conduct litigation about that medical treatment – obviates the need for anyone to conduct a capacity assessment with Mr SH to determine whether or not, in practice, he has litigation capacity. It can simply be assumed that he does not.
The judge accepted this argument, saying “there should perhaps have been an earlier consideration of litigation capacity, but it is quite obvious what the answer is to that”.
On the one hand I was quite disturbed that Mr SH’s lack of capacity to conduct legal proceedings was simply deduced, without empirical evidence. But I also strongly suspect, given what I heard, that had empirical evidence been sought, the same answer would have been reached – and an adjournment for a few weeks to get that evidence before returning to court would have left Mr SH at risk of his gangrene spreading further, and mean that more of his toes might need to be amputated. It was a pragmatic but uncomfortable solution – and not one I would want to see adopted frequently by the court.
The Official Solicitor: Debra Powell QC
The judge turned next to counsel for Mr SH whose position was effectively the same as the Trust’s.
Debra Powell QC began by checking that the formal requirements had been met such that she could act as Mr SH’s litigation friend (i.e. that Mr SH could be deemed to lack litigation capacity) and the judge confirmed this.
Debra Powell QC had previously stated that she had no questions for the witnesses – three of whom were on the platform: a consultant vascular surgeon, a consultant anaesthetist, and a consultant psychiatrist. She described their witness statements as “very thorough”, said they “canvass all the issues”, and concluded that “the evidence is clear and cogent that this is the least restrictive option – and the only option that provides him with a realistic option of keeping his leg”.
The decision, she said, was “obvious”: “from a medical point of view there’s no doubt about his medical best interests, but the quality-of-life issues are overwhelming”.
She reiterated that Mr SH’s opposition to surgery is based in delusional beliefs: “(1) that God has already healed his foot – he says the black is dried blood (but it’s because the tissue is dead); and (2) he’s convinced – and uses colourful language to express the belief – that doctors are lying to him.”
This contrasts (she says) with opposition to surgery expressed by some other Ps in other hearings who’ve expressed “a firm and consistent view that they would rather die with 2 legs than live with one”. Mr SH’s wishes and feelings are “important”, she said, but “shouldn’t take precedence”.
A comparison can be made with another case in which the judge authorised treatment contrary to the patient’s wishes.
“This was not a man who had expressed a wish to die, rather than have this treatment. This is a man who has consistently maintained, and I consider genuinely believes that he would get better without treatment. Unfortunately, that possibility is entirely irreconcilable with the medical evidence.” (Hayden J, §25 Pennine Acute Hospitals Trust V TM  EWCOP 8))
She ended by saying:
“There is no evidence that he’ll suffer psychological harm from having the procedure done against his will. He may be angry and upset and to some degree distrustful afterwards, but that needs to be weighed in the balance against what would happen if his foot deteriorates.
So in my submission this is the least restrictive option, giving him the best chance of a longer life and the best quality of life. The best interests decision comes down in favour of surgery as soon as possible.”
There was a break of nearly an hour while the judge “gathered her thoughts” and (re)read the paperwork before delivering an oral judgment.
Her judgment added a little more detail from the court bundle of evidence about the extent of Mr SH’s refusal to accept treatment and his refusal to attend hospital for appointments on several occasions.
She ran through the evidence for his not having the capacity to make the decision for himself about medical treatment for his legs, saying much the same as the two lawyers.
Her judgment on best interests, too, relied heavily on what the lawyers had said.
“It’s in his best interests to undergo the angioplasty, amputation and surgical debridement as a single planned surgical admission which gives the best chance of preserving his lower left limb which will enable him to do the things he enjoys and maintain a significant quality of life not too dissimilar to his current lifestyle. Although his wishes and feelings are not to have this operation, those wishes and feelings are based on delusion… I give less weight to his views for that reason. It is lawful, necessary, proportionate and in Mr SH’s best interests to make the declaration sought and to approve the order.”
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets as @KitzingerCelia
 We are not permitted to record Court of Protection hearings. Quotations are based on contemporaneous touch-typed notes and although they are as accurate as possible, they are unlikely to be entirely verbatim.