Assessing and treating leg ulcers of a resistant patient: A law student’s first COP hearing

By George Palmer, 17 August 2023

Editorial note: The judgment has been published here: Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35 (15 August 2023)

The person at the centre of the hearing I watched (Mr K) has chronic ulcers on both his legs. Medical professionals want to examine them and assess what treatment is needed.  Mr K is refusing to permit this. He has a long history of mental health challenges, going back at least to 2007, and he was diagnosed with severe ischaemic cardiomyopathy (heart failure) in 2014.  Previous medical opinion is that because of Mr K’s heart problems, it would be too risky to use physical restraint, or chemical restraint, to compel him to submit to examination or treatment against his wishes. 

I am a third-year law student at the University of York and I’m intending to go into Clinical Negligence as a barrister. I have always intended to go into the legal profession: its competitive nature and challenging environment are two of the many aspects that drive me towards the profession with the aim of pushing myself to achieve my best. I have always found healthcare law, which takes something so subjective and personal, such as a patient’s mental or physical health, and attempts to turn it into an objective matter and problem for barristers to debate over, and judges to determine, incredibly fascinating. And I feel that being a barrister, rather than a solicitor, gives me the best chance to make an impact on the decision-making process revolving around these patients and individuals. Although I’ve witnessed a variety of in-person and remote court hearings before, such as criminal trials in my local Magistrates Court, this was my first COP hearing and I found it highly intriguing.

I was keen to gain some real-world experience with health-related court cases, so contacted the Open Justice Court of Protection Project hoping to gain access to a medical treatment case. 

Transparency 

With the support of Celia Kitzinger, who was observing the same hearing, I sent an email to the Royal Courts of Justice staff, requesting access to observe the 3:00 pm hearing (COP 13043376) before Mr J McKendrick KC sitting at the Royal Courts of Justice on Friday 11 August 2023, remotely via MS Teams. 

I didn’t get a reply from the RCJ email address, but I forwarded my email to Celia who forwarded it on to a Video Hearing Administrator, who responded promptly by sending me the link. 

I’m not sure I would have gained access without the support of the Open Justice Court of Protection Project – either in terms of knowing how to go about finding a hearing to observe, or getting the link. The Open Justice Court of Protection Project allows aspiring barristers like myself the opportunity to observe and report on issues that I would never have had the opportunity to see without their help. Their dedication to the access of justice for all individuals, and their commitment to ensuring justice is open for all to observe, is something I am hugely impressed by.

There was an introductory summary at the beginning of the hearing which was hugely helpful to someone like myself, where this was my first encounter with the case, despite there having been multiple hearings in the past few weeks. It is now clear to me why the former Vice President of the Court of Protection, Mr Justice Hayden, placed such an emphasis on the importance of these introductory summaries, as they clearly do ‘help to place the identified issues in some context’, which he hoped they would. 

I have not been sent a Transparency Order for this hearing. One of the lawyers explained that there was a ‘standard’ Transparency Order (TO) in place – but as this was my first Court of Protection hearing I had no idea what this meant until Celia sent me a link to the ‘standard’ template. Although the judge mentioned that the standard TO allows for public bodies to be named, but not clinicians, upon further research and looking at this TO myself, I found that the anonymity surrounding COP cases and other healthcare law matters differed hugely from my experience of criminal trials. 

The person at the heart of COP hearings is someone who is deemed to have some “impairment of, or a disturbance in the functioning of, the mind or brain” (§2(1) Mental Capacity Act 2005) and it’s usual for their identity to be protected.  My research led me to the highly interesting criminal case of R (on the application of C) v Secretary of State for Justice [2016], where the court considered whether to grant anonymity to a mentally ill man convicted of murder. This case highlighted the importance that courts place on ensuring the reintegration of the mentally ill back into society, placing a large emphasis on the possibility that a lack of anonymity may result in the jeopardising of a person’s treatment, even where they have committed a crime. Therefore, from the unjust potential undoing of any treatment of a patient at the heart of healthcare cases, it is clear to see why so many are anonymised where most criminal cases are not, and the need for such anonymity within the Court of Protection. 

The barristers

The applicants, represented by Arianna Kelly of 39 Essex Chambers, were Barnet Enfield and Haringey Mental Health Trust and North Middlesex University Hospital NHS Trust.

The first respondent, represented (via his litigation friend the Official Solicitor) by Simon Cridland of Serjeants’ Inn Chambers, was the person at the centre of the case, Mr K. 

The second respondent, represented by Chiara Cordone of 39 Essex Chambers, was the London Borough of Enfield. I found via Google that Ms Cordone is a member of Freebar, a network dedicated to the inclusion and support of LGBTQ+ people within the legal community, which I find both an incredible and much-needed project within our current society.

The third respondent (also represented by Arianna Kelly) was the Hospital Trust. 

What was the hearing about – and what did the judge decide?

This was an application from two Trusts to find a way of assessing –  and subsequently treating – the long-standing ulcers  on Mr K’s legs. There was medical evidence that both legs might need to be amputated to save his life, in a worst case scenario.

Proceedings concerning Mr K go back a long time. 

In 2016 he was detained under section 2 of the Mental Health Act 1983, and prescribed antipsychotic medicine.

At some stage he was admitted into hospital and it would appear lived in hospital from around 2017 until he was discharged to B Home in March 2023, after Court of Protection proceedings, and with a standard authorisation in place depriving him of his liberty. 

However, once in the care home, “he spent almost all of his time in his room alone, declined any intervention from professionals and is not attending to his personal hygiene”.  

In July 2023 it was noted: “There are significant concerns regarding Mr K’s physical health, in particular the state of his leg ulcers which are reported to be in a concerning malodorous state” (§20 judgment)

On the 10th of July the applicants’ solicitor issued an application for an order to convey Mr K to hospital and for his ulcers to be treated.  The judge quotes from the grounds for the application.

“Mr K is subject to a standard authorisation in a care home following five years spent in a mental health facility in which he was not detained but which he refused to leave. He suffers from persistent delusions and paranoia and refuses to engage with professionals. He has a long-standing heart condition which makes any treatment against his will extremely difficult to carry out. Previous orders of the Vice President Theis J have authorised his successful conveyance from hospital to a care home with provision for physical and chemical restraint – neither of which was in fact required. Mr K has longstanding leg ulcers which he has previously treated himself. He refuses to allow staff or other medical professionals to assist him or assess them. Staff at his care home are now concerned, however, that the wounds are foul smelling and may be demonstrative of significant infection: one staff member reports vomiting at the smell and seeing “bone” when dressings were removed. In light of the seriousness of the issues, reallocation to a Tier 3 Judge is considered necessary and appropriate.”

The key issue before the Tier 3 judge, Mr. J McKendrick KC,  is about the best way to assess Mr K’s potential health issues. 

Determining capacity

If Mr K has capacity to make his own decisions about his medical treatment, then his decision to refuse to allow professionals to inspect his leg ulcers is final. The court cannot order assessment or treatment of a person with capacity to refuse it.  

A person can only be deemed to lack capacity if they are unable to understand, retain, weigh or communicate information relevant to the decision that needs to be made, and if that lack of capacity is caused by an impairment in the functioning of their mind or brain. 

Both jointly instructed expert in old-age psychiatry and Mr K’s treating psychiatrist have given evidence that Mr K lacks capacity to make decisions about his treatment due to a delusional disorder or a severe (paranoid) personality disorder 

In determining P’s capacity, Mr. J McKendrick stated:

“I am satisfied applying the statutory principles set out in section 3 of the 2005 Act that there is reason to believe that Mr K is unable to make decisions about the treatment options. I accept the written evidence of Dr M following his recent assessment that Mr K is unable to weigh the relevant information in respect of the treatment for his ulcers. This is largely because of his paranoid preoccupations and obsessions. Mr K is reported to be screaming at night in pain, yet will not permit a tissue viability nurse to assess his malodorous wounds. All the evidence points to there being reasons to believe he cannot make a decision for the purposes of section 3.” (§68 judgment)

He concluded, therefore, that “The court accordingly has jurisdiction to consider where Mr K’s best interests lie.” (§70)

Determining best interests

When a person is deemed to lack capacity to make a decision, the court must make it in their best interests.  A ‘best interests’ decision is not the same as the decision the person wants to make for themselves.  Here it is clear that Mr K does not want his legs to be assessed by professionals, but the judge made a decision that they should be assessed.

Doing nothing and allowing Mr K to go on in pain was, the judge said, “inhumane”. But taking Mr K  to hospital under sedation was too much of a risk for his physical health.  Therefore, the only option left to the court was to assess his leg ulcers in the residential home where he currently lives.

On 11th August 2023  (between court hearings) an overnight team of clinicians put together a care plan for his assessment. The judge notes that “They are much under pressure anyway, but particularly so as a result of the junior doctors’ strike. The clinical team trying to treat Mr K are operating in the most demanding of circumstances and have the court’s admiration and gratitude”. (§75, Judgment)

The plan contains detailed information how Mr K will be assessed by the vascular team, supported by others.  It is proposed to use very short-term chemical and physical restraint (if necessary) to ensure Mr K can be properly assessed, without causing the risks to his cardiac system or physical health that would arise out of longer-term restraint in an ambulance or in a long-term setting. This might include covert chemical restraint.

The judge said, “I am proceeding on the basis that Mr K doesn’t welcome this plan, and his wishes and feelings are against it, but we cannot permit further delay and it is overwhelmingly in his best interests”.

It is always uncomfortable to be in a situation where people are treated against their stated wishes – and even against their physical resistance.

One interesting feature of the hearing is that Mr K has what the judge described as “a strange view of authority”. Apparently, he is much impressed by the authority of the court, towards whom he displays “a degree of deference and respect, if I may put it that way”.  The judge suggested that “it may be that Mr K seeing the court order, and maybe a short letter from the judge saying, ‘I ask you to cooperate’ would be useful.  It might help to focus on his understanding why all of this is necessary and how worried we all are about him”.

Reflections

Considering I only observed the penultimate of many hearing, reading the judgment for context was incredibly helpful for gaining insight into the case. However, actually watching the hearing, live, in real time, and being able to listen to the barristers talk about the issues concerned gave the final outcome in the judgment lots more meaning and understanding than I am accustomed to when studying law and reading judgments for research purposes. 

Watching the advocacy skills of these established barristers and observing how a judge interacts with barristers, especially compared to my experience only with mooting which can be quite scary and harsh compared to this reality, was very insightful, and has given me more confidence that I will be able to go on and advocate in front of a judge with the same amount of skill and confidence as those within this case. Of course, one of the key differences in this case is that the Court of Protection is an inquisitorial – rather than adversarial – court, and the way that the barristers and everyone else were working together in the best interests for Mr K was very apparent.

This experience has been incredibly useful in giving me insight into the court – not only as to how barristers and judges interact and advocate in the Court of Protection, but also in  displaying the practical implications associated with a lack of capacity under the Mental Capacity Act 2005.  To see how deeply decisions about mental capacity can impact a patient’s life and the decisions that are made on their behalf was just eye-opening. 

The final hearing on Friday 18th August 2023 is to determine the way forward in Mr K’s best interests in the light of the assessment that this hearing authorised – and the further expert evidence that will be prepared for that hearing.

I would highly encourage law students to observe this hearing tomorrow  – and other hearings in the Court of Protection.  It is a great opportunity to see how the provisions and materials we learn about in our studies really affect people in a court of law.

George Palmer is a third-year University of York Law student and aspiring Clinical Negligence barrister. He hopes to commence Pupillage in 2025 and one day become a leading barrister in his chosen field.