By Diana Sant Angelo, 4th July 2022
I am a Best Interests Assessor and I wanted to observe a hearing in the Court of Protection because I have always been interested in law – and now as a BIA, I am working in the overlap between the care and legal systems.
On a more personal note, I trained in a long stay learning disability hospital where people had no rights. Although there were staff who did their very best in a dreadful situation and felt affection for the residents, I saw gross abuses of people’s liberty, privacy, dignity, and health. The people who lived there were not valued by society. I vividly recall some of those people who had no chance of a decent life. We have come a long way and the existence of the Court of Protection is to be celebrated.
The hearing I observed (COP 133883671, via MS Teams) was before Mrs Justice Theis on 23rd June 2022. It turned out to be a short hearing of only 40 minutes, starting at 3.10pm and ending at 3.50pm.
It was a case that has been previously blogged by Claire Martin of the Open Justice Court of Protection Project, so I already knew some of the background to the case.
- A man with a diagnosis of schizophrenia can be conveyed to hospital against his wishes for assessment of his ulcerated legs
- A long wait for medical recommendations – still in hospital after 18 days
- More on Mr M: Medical recommendations, still awaiting discharge and final hearing plans
At the beginning of the hearing, counsel for the local authority, Ulele Burnham provided a short summary for the public observers. She said that the protected party at the centre of this case (referred to as ‘Mr M’ in our blog posts) was conveyed to hospital in February 2022. No force was required. He was treated by the vascular team and needs no further invasive treatment. He is fit for discharge. The question now is where he would be discharged to and the concern that if he returns to his flat, he would fall back on his previous refusal to accept care for his ulcerated legs. After a “protracted search” for a placement, a nursing home has been identified where he can get wound care. All parties agree that the placement looks appropriate and he could move on 7thJuly 2022. The issue now is whether a decision to move him to the placement can be made in his best interests, or whether he has mental capacity to decide for himself where he lives and receives care. A mental capacity assessment is needed.
Capacity Assessment and Mr M’s views
Counsel for Mr M via his litigation friend the Official Solicitor, Katie Gollop, asked for evidence of Mr M’w current lack of mental capacity to decide about residence and treatment, given that no placement had been identified at the time of the last assessment.
It was reported that Mr M has expressed ambivalence about the nursing home and the NHS Trust has asked a doctor to do another mental capacity assessment prior to the move on 7 July 2022.
There was no expansion of what was meant by Mr M’s “ambivalence” and no reporting to the court of what his views are.
Discussion then took place to the effect that a mental capacity assessment needs to be completed by 1st July 2022 and reported back to Mrs Justice Theis.
The judge could either decide on 2nd July 2022 that the draft order can be approved, or it will go on to a hearing on 6th July 2022.
Counsel for the hospital confirmed that Mr M is fit for discharge and said that discharge planning should involve staff from his new placement as he has formed relationships with current nursing staff and needs to make relationships with new staff if the placement is to succeed. A discharge planning meeting is needed by 1st July 2022.
Counsel for the CCG asked if the doctor is actually available to do the mental capacity assessment by the anticipated date (concerned that – for example – he might be on holiday).
Counsel for Mr M, Katie Gollop, said that they would like to see evidence of work done to help Mr M understand that his options are limited, i.e. he can’t stay in hospital and his only option is to go the nursing home. I inferred from this that Mr M has now got used to being in the hospital and likes it. Again, it would have been useful at this point to know how he has got on in hospital – what have been the benefits to him of being in hospital? Has he responded well to the staff and having daily care?
Questions were raised about whether the doctor is going to include education in his capacity assessment. Is Mr M going to be shown the care home as part of supporting him to make a decision about moving? Katie Gollop referred to s 3(2) Mental Capacity Act and the principle requiring that support should be given to make a decision.
Mrs Justice Theis asked who is going to do this education and Katie Gollop said that the Official Solicitor would want educative work in the Order.
Ulele Burnham, counsel for local authority, reported that the social worker had emailed her (during the hearing) and offered to do the mental capacity assessment.
All agreed (having got advice by emailing other parties during the hearing) that the social worker would be an appropriate person to do the assessment as it is a normal part of their remit to do this. The only question was whether the element of the treatment of his ulcers might have made a doctor a more appropriate person. The fact of the social worker offering to do the assessment was more compelling to those present and his offer was accepted.
The judge said she would like to have an outline for the mental capacity assessment.
The judge said she does not like contingent orders and if there were any ambiguity she would go for another hearing. She then asked Katie Gollop about the transition plan (i.e. how Mr M’s physical move from hospital to nursing home would be accomplished). Katie Gollop replied that the previous order (moving Mr M into hospital) had included authorisation for the use of force and the presence of the police. In fact, the police had not been needed. Mr M now knows the security staff at hospital, and she suggested that the move take place when they are on duty.
Mrs Justice Theis said that she needs to know precisely what is going to be done during the move, e.g. police presence, use of medication, use of restraint. Ulele Burnham (for the local authority) suggested this could be discussed at the discharge planning meeting. Mrs Justice Theis said that, regardless of how this is agreed, it needs to be recorded in the transition plan for her to approve at the next hearing.
The judge then thanked the social worker for offering to do the mental capacity assessment and noted that continuity was beneficial rather than having a new person completing this. She said the outcome of the mental capacity assessment was to be with her by 2pm on Monday 4th July 2022, with the next hearing listed for the afternoon of Wednesday 6th July 2022.
As is commented on in previous blogs, Mr M’s own voice did not really come through in this hearing.
There was no mention of Mr M’s illegal drug use and I infer that he is not using illegal drugs now, as he has been an in-patient for 3 months. It would have been helpful and have given Mr M a presence in the hearing (if indirectly) if we had heard how he is now. For example, has his drug misuse been treated, how is his mental health, and what does he want for himself?
Also in the last blog there is reference to Mr M’s drug misuse as being a factor affecting his mental capacity to make decisions. I wonder if he is on a therapeutic substitute, and if his cognitions are now more ordered, such that he may have regained capacity to make his own decisions about residence and care. If he has regained mental capacity – what next?
If his illegal drug use has not successfully been treated, how much is there a risk that he will try to get drugs again?
The social worker has really stepped up to help. I wonder if he will have the time to do the educative work needed to help Mr M understand the information needed to make the decision.
I got the impression that the barristers were going through the process of the hearing as if they knew what was happening for Mr M when I infer that, in fact, they did not know much detail about his daily life.
This was an interesting hearing to observe because I have come across a person in my past professional experience who also had leg ulcers which they refused to have dressed. This case demonstrates that there are legal means to help people in similar situations – situations that can be challenging for health and social care staff to respond to.
Diana Sant Angelo is an Independent BIA/ Registered Nurse working in Hampshire. She tweets @DianaStAngelo
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