By Celia Kitzinger, 16 July 2023
Mr D is in his fifties, and he’s currently in a psychiatric hospital, with a longstanding diagnosis of paranoid schizophrenia and a suspected mild learning disability.
He’s lost a lot of weight recently, and blood tests show a range of inflammatory markers indicative of potential cancer. Doctors say he needs a full-body CT scan and further blood tests to investigate this.
The problem – up until shortly before the hearing – was that he was “flatly refusing” to have a CT scan, and also refusing to engage in discussion about the issue.
By the time of the hearing, however, Mr D seems to have changed his mind.
The applicant Trusts wanted the court to make declarations that Mr D lacks capacity to make decisions about investigations and treatment, and that it’s in his best interests to undergo investigations for what might be an “aggressive cancer” (with sedation and restraint if necessary).
This is not an unusual scenario in the Court of Protection.
There are many cases where people deemed to lack the capacity to make their own decisions about investigations and/or treatment say that they do not want medical interventions or treatment[1].
The parties
This case (COP 14099629) was an urgent application before Mrs Justice Theis, Vice President of the Court of Protection, in the Royal Courts of Justice, via MS Teams on Friday 23rd June 2023.
The applicant Acute Trust and Mental Health Trusts were represented by Rhys Hadden of Serjeants’ Inn. The Devon Partnership Mental Health Trust is responsible for Mr D’s examination and potential treatment, and the Mental Health Trust is responsible for his care while he’s a detained patient.
Mr D, as first respondent, was represented (via his litigation friend the Official Solicitor) by Elizabeth Fox – also of Serjeants’ Inn. Mr D was also present in (virtual) court, accompanied by a solicitor.
Mrs D, Mr D’s mother, was present at the hearing but did not wish to be joined as a party. She didn’t speak at the hearing.
Transparency Matters: Position statements and Transparency Order
I requested Position Statements from both the Trusts and from the Official Solicitor. I am grateful to the Official Solicitor for sending her Position Statement.
I did not receive a copy of the Transparency Order and am assuming that it is the ‘standard’ order as summarised (orally) by Mrs Justice Theis in the course of the hearing. She said it prohibited anything that might “directly or indirectly identify [P] or his family”. She said (as this judge – only! – usually does): “If anyone requires to see a copy of the order, then they should immediately communicate with the court”[2]. I’ve not been sent a copy, but the OS’s Position Statement refers to the draft order and says it “provides that no person shall publish any information that might lead to the identification of [Mr N], his family or the clinicians providing him with care”. So, it seems that, in fact, there is more in the Transparency Order than simply the prohibition on identifying P and his family – the identity of clinicians is included in the information we are prohibited from publishing. There is a danger in oral summaries from judges (or counsel) that they do not always adequately capture the scope of the Transparency Order, and so it is good practice for judges to ensure that the injunction is served on all observers (whether we believe ourselves to “require” it, or not – since we may not be best placed to make that assessment).
One additional sentence of the OS’s Position Statement struck me: “The order currently lasts ‘until further order’ but this will likely need to be altered to a firm date in light of the recent decision in Abbasi v Newcastle upon Tyne [2023] EWCA Civ 331”. This is a reference to a case heard by the Court of Appeal this year. It concerned “the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order (“RRO”) made long before in end-of-life proceedings in the High Court”. The current practice is to grant indefinite anonymity orders (‘until further orders’) and this was not seen as acceptable by the judges in the Court of Appeal. In his Mental Capacity Law and Policyblog, Alex Ruck Keene comments:
it is clear on the basis of this judgment that in any case going forward – whether in relation to children or adults with impaired decision-making – that:
(1) as ‘refined’ a focus as possible is required by both the relevant parties and the court upon those individuals most clearly requiring protection;
(2) that the protection may be required to ensure the continued anonymity of the subject of the proceedings / their family; to maintain the integrity of the proceedings; or to secure against a risk of harm to a professional;
(3) that the focus may need to be refined as matters continue to unfold (and, in particular, in light of any relevant social media activity of concern);
(4) any application to continue the RRO after the end of the proceedings on the basis of continuing risk must be based upon clear evidence as to the nature of that risk; and
(5) indefinite RROs (at least in respect of securing the anonymity of professionals, rather than the person or their family) will very much be the exception rather than the norm.
“Reporting restrictions and serious medical treatment cases – a difficult (evidenced) balance” by Alex Ruck Keene, Mental Capacity Law and Policy, 31 March 2023 (my bold emphasis)
This means that if we are sent Transparency Orders – at least those relating to serious medical treatment – which grant anonymity for an indefinite period of time, we would do well to query them with the court and request that they are varied in line with the Court of Appeal decision in Abbasi.
The hearing
The first thing that happened after joining the video-platform was that we were all asked to log off again because Mr D had said he’d like to meet with the judge privately, and she wanted to use the same link.
When we logged on again, the judge provided a summary of their conversation.
“The technology worked really well. We were able to hear each other. He clearly understood what the issues were that I was being asked to consider. He wanted a CT scan to his head. I said what was wanted was to scan other parts of his body, and he indicated he agreed with that as well.” (Judge)
Mr D nodded, apparently showing his agreement at this point.
The judge continued:
“He understood it is on the same site.” (Judge)
At the time, I wasn’t sure what this meant, but the Position Statement from the OS made it clear. The radiology department, where it is proposed that the CT scan and blood tests will be done, is in the same hospital grounds as the ward where Mr D is currently detained under s.3 of the Mental Health Act 1983.
“He requested a vehicle to take him. He also agrees and understands about the blood test and agrees to that being done. I initially thought he was asking me to deal with the blood test, but he realised the blood test would be done by someone at the hospital. Ideally, he would like for this to be done today. But he accepted it might need to be on Monday. I can see that Mr D is doing a thumbs-up so I hope that means I’ve accurately summarised what he said.” (Judge)
Mr D did another thumbs up. It seemed he agreed!
Counsel for the Trusts introduced everyone in court and then provided a very helpful brief introductory summary of the case (as recommended by the former Vice President of the Court of Protection – click here).
He explained that prior to being detained in hospital under s. 3 Mental Health Act about six months ago, Mr D had been living in supported accommodation in the community for more than twenty years, and was stable. His medications have been changed and it is possible that he may regain capacity to make his own decisions about investigations and treatment. For now, however, the applicants are seeking a declaration that he lacks the requisite capacity and that it’s in his best interest to undergo investigation and treatment. However, the next available appointment was two weeks away.
Trusts: There is the potential for Mr D to be scanned on an emergency basis, and we can explore that further in the light of what he Mr D has said today. Radiography, the anaesthetist and the relevant nursing staff are all available on 30 June. But in light of what Mr D has said today, I’m trying to take instructions on whether that can be expedited.
Judge: I know that any delay would cause him anxiety and concern.
The ward doctor was in court and put up her hand at this point. She explained that the problem with an earlier appointment was that the anaesthetic department couldn’t guarantee their support at an earlier date, “because if there was an emergency that would take precedence”.
The judge addressed Mr D, saying: “Well it sounds like next Friday. What next Friday would do is it would give you certainty of who is going to b there and the arrangement would be fixed, rather than an uncertain appointment”.
But Mr D was shaking his head, saying he wanted Monday not Friday and asking to address the judge again, privately, on the matter of the date.
We were asked to leave the hearing again (but this time to rejoin immediately and wait to be admitted in the virtual ‘waiting room’). When we were readmitted 15 minutes later the judge gave a short oral extempore judgment.
Judgment
“This is an urgent application made by Devon Partnership NHS Trust in relation to Mr D. the court is being asked to make orders to the effect that it is in Mr D’s, who it is said lacks capacity, best interests, to have a CT scan and a blood test. Mr D has joined this hearing, and I’ve had the very great benefit of being able to speak to Mr D across the court screen, and he’s set out his position and indicated very clearly to me today that he would agree to those procedures taking place. He would like them to take place sooner, rather than later – today, or on Monday. But the position at the moment is that Dr X, the relevant doctor on the ward, gave the information in the hearing that the first fixed appointment is next Friday, 30th June 2023. The court had the opportunity to discuss that with Mr D as well. He repeated his wish for the scan to take place sooner, but recognised in the worst-case scenarios that next Friday would be it. I urge the hospital to keep looking at the possibility of doing it earlier. It will ease his understandable anxiety. Up until today, Mr D was resistant to those procedures taking place. Just dealing with the position of Mr D. He is currently on the hospital ward, subject of a provision under s.3 Mental Health Act since the beginning of this year, prior to which he lived for many years in the community. He has psychosis and learning difficulties. He recently deteriorated in his accommodation in the community. He was not looking after himself. He had angry outbursts. He was losing weight. He was admitted to hospital and blood tests indicated that further investigations were necessary. The court has the benefit of Mr A and Mr B – Mr A is the responsible clinician. He sets out his capacity assessment and it is clear to me that Mr D is unable at the moment to weigh in the balance the relevant factors in making an informed decision. His medication has been changed and by the middle of July he may have regained that capacity. But he lacks now decision-making capacity for medical issues and for litigation. This is accepted by the Official Solicitor. Turning now to the relevant legal framework. I am satisfied that Mr D lacks capacity. There has been a discussion in the Position Statements as to whether there should be an interim s.48 declaration, or s.15 as sought by the applicants. The court accepts s.15 at this stage on the basis it’s clear in the order that this is on the basis of the evidence the court has at the moment. Both parties will keep this under active review. So, the court needs to consider whether the scan and the blood tests are treatments that meet Mr D’s best interests. Whilst I recognise there has been a history of Mr D not wishing to consent to such treatment, that changed this morning. I am alive to the fact that the position may change again. This case will come back to court again in late July. The care plan I am asked to authorise sets out a very careful, considerate and staged approach in relation to this treatment – starting out with Mr D agreeing, to having support systems in place and stepping up medications needed to calm Mr D’s anxieties, and the possibility of any restraint […]. Beating in mind the nature of the investigations, and concerns about what they may reveal, and the imperative need for Mr D to have these investigations, I am of the view that the care plan as set out should be authorised by the court. But I hope that Mr D having been able to hear what the court has said, and having been able to express his view to the court, will mean that not all elements of the care order will need to be implemented. The case will return in the middle to end of July to consider what the next stage is. (To Mr D) That concludes the case, and I’m sorry it’s taken as long as it has, but we now have a plan going forward.” (Judge)
And with that, the judge left the hearing.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 450 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
[1] For some other cases we’ve blogged about involving application to conduct investigations/administer treatment contrary to P’s wishes see these blog posts.
- A man with a diagnosis of schizophrenia can be conveyed to hospital against his wishes for assessment of his ulcerated legs
- On not authorising restraint for bowel surgery
- Cataract surgery for a patient who’s refusing it
- A court-authorised hip replacement
- A censored account of a case involving possible restraint
- Court considers how to operate against patient’s will
- Unwanted amputation and its likely aftermath
- Refusing kidney dialysis – a daughter’s reflections
- A Permissive Order For Amputation Contrary to P’s Wishes
[2] We are not allowed to audio-record hearings. Material presented as direct quotation from the hearing is based on my contemporaneous touch-typed notes and is as accurate as I could make it – but it’s unlikely to be 100% verbatim.
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