By Celia Kitzinger, 19th July 2022
This was a short hearing in a long-running case – and if things go according to plan, it will have been the final hearing.
There were two hearings in February 2022, the second of which approved Mr M’s transfer to hospital for what was projected to be an overnight stay. At the time of this hearing (6th July 2022), he was still there, more than four months later.
There have been three subsequent hearings (one in each of March, April and June 2022) followed by this hearing in July 2022 at which a discharge plan and a transition plan to a new placement were finally approved. (See the Appendix for a list of previous blogs – with links – about this case.)
This case (COP 13883671) first came before the Court of Protection on 8th February 2022 as an “Urgent” application from the local authority to convey Mr M (who has schizophrenia) into hospital against his wishes, so that the ulcers on his legs could be assessed.
He didn’t want his legs to be assessed and had declined to go outpatient appointments.
The local authority (represented by Ulele Burnham) was concerned that the ulcers were “suppurating” and “malodorous”. Mr M was allegedly injecting Class A street drugs into his wounds, and there was a risk of sepsis. Both the local authority and the NHS Trust, represented by Emma Galland, agreed there should be an order to convey him to hospital.
However, at the first February hearing the judge (Peel J) declined to authorise transfer to hospital because Mr M was not represented (i.e. did not have a barrister in court to address the judge about his best interests).
A next hearing was arranged in short order and took place on 14th February 2022 before Mrs Justice Theis (who has been the judge at all subsequent hearings). At the second February hearing, a barrister, Katie Gollop was in court to represent Mr M (via his litigation friend, the Official Solicitor). She agreed that he should be transferred him to hospital (against his wishes) because this was in his best interests.
Mrs Justice Theis approved the order that Mr M should be taken to hospital (forcibly if necessary) for assessment of his leg ulcers.
He was taken to hospital (apparently without the need for force) on 21st February 2022.
Although the assessment visit to hospital was predicted not to involve more than one overnight stay, Mr M was still in hospital 18 days later, at the next hearing on 11th March 2022. 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 treatment in the community, could lead to sepsis and death. At that point Mr M was willingly taking antibiotics for his infection and that was “holding the ring”, and the infection had not moved into the bloodstream. During his time in hospital Mr M had been assessed by two consultant psychiatrists, both of whom agreed that he did not have capacity to make decisions about his physical health and treatment options. He had also been seen by the ‘drug abuse team’ and prescribed methadone, which he was taking.
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”.
At the next hearing, on 8th April 2022 (by which time Mr M had been in hospital for 40 days), the medical assessment and recommendations were now agreed: 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.
The issue now was 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 can best be met. There was a suggestion that he might regain capacity to make decisions about his medical care and where he lives.
The next hearing, due to be held on 20th May 2022, was vacated, but on 23rd June 2022 the case was back in court for another hearing before Theis J. The question now was where he would be discharged to and the concern was 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 had been identified where he can get wound care. All parties agreed that the placement looks appropriate and he could move on 7thJuly 2022.
The issue now was whether a decision to move him to the placement could 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 was needed, and the judge was clear that she also wanted details about the ‘transition plan’ (i.e. how Mr M would be moved from the hospital to the new care home that has been identified for him).
Hearing on 6th July 2022
Counsel for the local authority (Ulele Burnham) gave a brief and very helpful opening summary.
She reported that a capacity assessment had been done and “he lacks capacity in the relevant areas … ”.
“All parties in the case agree that it’s in Mr M’s best interests to be moved to that placement. So, what is before the court is in essence an agreed order seeking the court’s approval for the move, and for deprivation of his liberty until such time as the statutory declaration can be given. … A discharge placement has been identified and a transition plan created for his conveyance.”.
The move to the new placement was now planned for 12th July 2022.
Mr M’s own views about the move were reported. “His objections are not as strenuous as had been thought and the hope and expectation is that he will comply with the terms of the order”.
The transition plan permits sedation (with oral diazepam) and “guidance and encouragement” from the police, “with physical restraint only so far as it amounts to guidance. If more restraint is needed, it will be put before the court for further authorisation”.
There were also some issues about funding to be sorted out (I didn’t understand quite what those were) but the expectation is that Mr M will move to his new placement on the afternoon of 12th July 2022.
If for any reason the move doesn’t take place on 12th July 2022, there will need to be a further hearing, but the hope was that this wouldn’t be necessary.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
Appendix: Previous Blog Posts about this case (by Celia Kitzinger, Claire Martin and Diana Sant Angelo)
- No decision without representation
- 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
- Mental capacity assessment and transition plan for a man with schizophrenia and ulcerated legs