Standoff about the appropriate expert: A pragmatic judicial solution

By Celia Kitzinger, 21 February 2023

Laura Wareham, 34, has been in hospital since April 2022 following an emergency admission. 

She has “a hugely complicated medical background”, including “autistic spectrum disorder”, “bipolar affective disorder” and “Bodily Distress Syndrome”. An independent expert  has found that she lacks capacity to make decisions about residence, care and support, medical treatment and contact with others (and to conduct these proceedings).

In August 2022, Laura was intubated, ventilated and very seriously ill.  She’s now stable but remains in the High Dependency Unit with 1-to-1 nursing care.  

Everyone agrees that she doesn’t require care in an acute hospital setting and hasn’t done for some time. Everyone agrees she should be discharged.  There is disagreement as to when she should be discharged, and where to – and an expert (Dr A) is currently at work to develop a care plan for her.

I can report Laura’s name, and the names of her parents, Conrad Wareham and Erica Wareham, because PA journalist Brian Farmer made an application to do so (and the family did not object).  I cannot identify the hospital where she is being treated, or any of the professionals involved in her care.

The challenge confronting the judge at this hearing was the involvement of someone I’ll call Professor X, an expert in infectious diseases.  Dr A, the expert who is working on Laura’s care plan wants to be able to draw on his  expertise.  Both the Health Board and the Official Solicitor support his doing so.  But Laura’s parents, and Laura herself,  very strongly object to Professor X’s involvement.  This was the ‘stand-off’ position at the beginning of the hearing.

Background

There has been conflict and disagreement between Laura Wareham’s parents and those caring for Laura for a long time. 

I observed an earlier hearing in this case back in August 2022 and blogged it (“I am fearful for my daughter’s life”: Serious medical treatment in a contentious case).  Brian Farmer also wrote about it: “Retired nurse tells judge her daughter ‘is not safe’ in Betsi Cadwaladr health board hospital’).

There was a subsequent hearing I did not attend, but which was covered by Brian Farmer.  He wrote:

“Consultant anaesthetist Conrad Wareham and his wife Erica, a retired nurse, outlined worries about the way their 34-year-old daughter Laura Wareham – who has mental and physical health problems – was being cared for by specialists working for Betsi Cadwaladr University Health Board, which is based in Bangor, Gwynedd.

He told a judge overseeing a hearing in the Court of Protection on Wednesday that they were worried about “interventions” planned by specialists and said the “organisation as a whole” had demonstrated it did not have the capacity to manage his daughter’s condition.

Mr Justice Francis made no criticism of specialists or the board, but said Dr and Mrs Wareham had been “interfering” with Miss Wareham’s treatment in a way that was “detrimental”.

“Judge criticises consultant concerned about how doctors are treating his daughter at Welsh health board”.

Hearing on 16^th February 2023 

This case (COP 1397774T) has not had the benefit of judicial continuity:  it been before Cobb J and Francis J previously, and today it was before Arbuthnot J. 

The applicant Health Board (Betsi Cadwaladr University Health Board) was represented by Scott Matthewson of Serjeants’ Inn Chambers and Laura Wareham was represented by Ian Brownhill, via her litigation friend the Official Solicitor.  (Two barristers representing local authorities were also present but played a minimal part in the proceedings.)

Laura’s parents, Conrad and Erica Wareham were litigants in person – having had legal representation until that very morning (the legal team “abandoned us”, they said).  This had led to a confusing situation where an agreed draft order had been placed before the judge which was not in fact agreed by the Warehams.  The draft order included the involvement of Professor X in Laura’s care plan. The parents object to his involvement – and so, most pertinently, does Laura herself.

The judge remarked that she’d read the attendance note from the Official Solicitor’s representative who visited Laura in hospital.  “She was very upset when Professor X’s name was mentioned.  She used all sorts of abusive language, and threw something at a nurse – though the nurse had nothing to do with it”.  

Counsel for the Health Board recognised that there were problems with proceeding with Professor X given Laura’s views (“if she has no trust in one of the experts feeding into her plan, there is a risk of non-compliance with it”). But he pointed out that Professor X “won’t be meeting her”.  Professor X is only to be instructed to write a ‘desktop’ report about Laura’s susceptibility to infection. 

The judge asked if there is “someone else who could do what Professor X could do – he can’t be the only expert”. 

It turned out that Laura’s parents had already made a suggestion for different expert but it hadn’t been followed up – and it wasn’t clear whether or not the doctor they wanted was available to act in the required timescale, or whether Dr A agrees that he’s the type of expert he’s looking for.

Conrad Wareham explained that Laura’s concern “is not so much about meeting Professor X – rather she’s concerned about his input into a close friend of hers, that was extremely damaging. She’s very concerned about him having any involvement”.

But Laura’s legal representative supported Professor X’s involvement.

OS:  The most important thing is to get Dr A’s report as soon as possible.  It’s a concern that he has still to report.  We are of course concerned that Laura would be upset with Professor X’s involvement, but he will not be examining her or directing her future care and treatment. Considering those features, the Official Solicitor came to the view that the better thing to do was to get on, get the report done, get Laura out of hospital, and not delay matters further.

Judge: Even at the risk she’ll have no confidence in the report?  Suppose she doesn’t like the report and he’s said to have contributed to it, and she believes he injured or killed a friend of hers, or a friend of a friend.

OS: She might say “Professor X has his hands on it – I don’t want anything to do with it”, but we hope people will work together and explain the report to Laura.  And if the Health Board won’t obstruct [the family’s choice of expert] having some input as well, and he’s available, we say get on and get the report done.

Judge:  They raise the question why is an expert on infectious diseases required anyway.

OS:  She has a propensity to infection, which has been a central plank of the parents’ concerns during the history of this case.  And Dr A has been telling us this is the information he needs to help you to make a decision about Laura’s placement.  If Professor X is not able to be consulted, there is a risk of a report that simply says ‘for the following reasons I can’t give you a definitive decision’.

The judge then asked whether Dr A had been informed of the problem and consulted as to whether there was an alternative expert on infectious diseases who could do the job for which Professor X had been his first choice. He has not: “he’s on holiday at the moment and we have been reluctant to disturb him”.  

Judge:  The job of Dr A is to make sure Laura leaves this hospital as soon as possible. He wants to work jointly with someone else and Laura is very strongly against Professor X.  Explain that the confidence of Laura and her parents will be fatally undermined by Professor X’s involvement. Ask him  if there is someone else who can fulfil that role – reviewing what needs to be done without needing to come in and see Laura. Is there anyone else he can suggest?  If he has an idea about someone else who can do it, the Health Board is to approach that person and see if they’re able to do it and turn around this piece of work. I do think confidence in the report by this adult patient and her parents is an important feature of this case.

After prompting by Conrad Wareham, the judge further directed that Dr A should be asked whether the family’s proposed expert could also be of assistance.

This seemed to me a wholly pragmatic and sensible solution.

There are further areas of dispute concerning (amongst other matters) where Laura is ordinarily resident, and so which local authority bears statutory responsibility for her; whether or not Laura has capacity to make her own medical decisions (raised by her mother who objects to the expert report finding that she does not); and whether and how face-to-face contact between Laura and her parents can happen, given that in-person visiting arrangements have been suspended at the request of the Health Board due to her mother’s behaviour towards health care staff.   These will no doubt be aired at future hearings.

The next hearing is listed for 22^nd February 2023 before Mrs Justice Arbuthnot.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings since 1 May 2020.  She tweets @KitzingerCelia.