By Daniel Clark, 20 August 2023
This case (COP 13043376) concerns Mr K, a gentleman with ulcers on both his legs, which he refuses to allow medical professionals to examine or treat.
At a previous hearing, which law student George Palmer blogged about earlier (“Assessing and treating leg ulcers of a resistant patient“), Mr J McKendrick KC ruled it was in Mr K’s best interests to be assessed by the vascular team. Rather than be conveyed to hospital, it was ruled it was in Mr K’s best interests to remain at the care home in which he currently resides for this assessment. If necessary, chemical and physical restraint was to be utilised. The judgment for the previous hearing (Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35 (15 August 2023) has already been published.
The hearing on 18 August 2023, a week after the last one, was to determine the way forward in Mr K’s best interests in the light of the assessment – and in light of the further expert evidence that was supposed to be ready for this hearing.
This hearing was listed to be heard before Mr Justice Keehan sitting (remotely) in the Royal Courts of Justice at midday on Friday 18 August 2023. It was a brief hearing – it began slightly late (at 12.12) and finished at 12.25.
The barristers representing the parties were the same as in the previous hearing: Arianna Kelly of 39 Essex Chambers, for the NHS Trusts; Simon Cridland of Serjeants’ Inn Chambers, representing Mr K via his litigation friend, the Official Solicitor; and Chiara Cordone, of 39 Essex Chambers, for the Local Authority.
Transparency matters
Access was challenging. I only got the link to this hearing at 11:55 – that’s five minutes before the hearing was listed to start. This is despite the fact that I sent my original request at 16:58 the day before, and then re-sent my request at 11:03 on the morning of the hearing. I also forwarded my request to a video hearings administrator whose email address I happen to have from correspondence about a different hearing. At 11:40, when I still hadn’t received the link, Celia Kitzinger forwarded my request to the person who had sent it to her.
Obviously one of those courses of action paid off, though I can’t be sure which one it was – the link came from (what looked like) a generic email address. The delay isn’t actually anybody’s fault: it’s indicative of how busy the Court staff are. Transparency is a noble goal but for it to be fully realised, there must also be the infrastructure to support it.
I have not been formally served with a Transparency Order for this hearing. Counsel for the NHS Trusts provided a detailed summary of the case so far but, unusually, she made no mention of a Transparency Order. In fact, nobody did. It struck me that, if there were observers new to joining hearings, they would not necessarily know that some information cannot be shared, and they would certainly have no way of knowing what that information was.
As it happens, Celia Kitzinger and I were (I think!) the only observers in this hearing, and from the hearing on 11 August 2023 (which Celia attended) we could reasonably deduce the Transparency Order would be the same. After all, if it had been changed, that would surely be raised in this hearing. Celia sent me the Transparency Order from the previous hearing before publishing this blog post.
However, it is not crystal clear to either of us, having inspected the Transparency Order, exactly what information it is prohibited to report. The “subject matter of the Injunction” (§6) says, as usual, that we can’t publish any information that identifies or is likely to identify (a) that Mr K is the subject of the proceedings, or (b) that any member of his family is the subject of these proceedings (in fact, no member of his family was a subject of the proceedings and it’s not known to the court that he has any family). At (c) it also forbids us reporting that Mr K is a party to the proceedings (that seems redundant, given (a)). And then (d) is a list of 7 other persons/organisations who can’t be identified: health and social care professionals involved in Mr K’s care, the care home he lives at, his GP and GP practice, the transport provider, and any witnesses (other than an independent expert witness). The list of 7 prohibited pieces of information at (d) also prevents identification of “Hospital A” and “NHS Trust A responsible for Hospital A” but we don’t know which hospital or hospital Trust the injunction means to refer to here, since there are several hospitals and hospital trusts involved. So we won’t name any hospital or any hospital Trusts (although some are named in the published judgment) until we receive clarification on this point. (There is “A Hospital” referred to in the judgment which “shall remain anonymous” (§87-89) – so presumably that’s the same as “Hospital A”.)
The hearing itself
Counsel for the NHS Trusts explained that Mr K was assessed by clinicians at the care home on 16 August 2023, a few days after the last hearing at which the judge authorised this.
Although Mr K did not resist the administration of IM (Intra-Muscular) medication, the “care team [previously identified as an outside agency who can provide physical restraint] did hold his hands”. Mr K tried to cover his legs when he thought pictures were being taken of his legs but otherwise allowed them to be examined and re-dressed.
The examination found palpable pulses to both feet and there was no cause for concern with the left leg. However, “his right leg is more swollen and is more painful and is described as having a malodour”. There was some discharge that could easily be wiped away. The vascular surgeon noted “the skin around the ulcer is not normal” which is potentially concerning given that cancer can develop with wounds such as this.
The normal course of treatment would be admission to hospital for surgical debridement and biopsies. However, the consultant anaesthetist is of the view that general anaesthetic could be dangerous due to Mr K’s long-standing heart problems – it would “impose a realistic risk of death”. Furthermore, given that Mr K “is not at risk of life or limb”, the consultants are convening a Multi-Disciplinary Team (MDT) meeting (scheduled for the afternoon after the hearing finished) to discuss the most appropriate way forward with a wide range of colleagues.
In essence, this assessment of Mr K not being at immediate risk has allowed all parties a small space to breathe, which must surely have been welcomed in a case such as this. There has also been a delay in receiving the expert evidence (due by 4pm the day before) and there is a view that this evidence would be of benefit to the team making best interests decisions – another reason why some breathing space is welcome.
The apparent urgency of the situation has not, however, meant that decisions have been rushed. Alex Ruck Keene notes, in his analysis of the published judgment, that Mr McKendrick KC engaged in ‘careful examination’ and was concerned to test ‘each step on the restriction ladder’. With the intensity dialled down a little, the parties have even more time to test that ladder.
The NHS Trusts were therefore not making an application (at this time) for Mr K’s conveyance to hospital or for compulsory treatment. Nor was it the view of the Official Solicitor or the Local Authority that conveyance to hospital would (at this stage) be in Mr K’s best interests.
Instead, all parties were asking for the submission of further evidence, setting out the options available to Mr K and the risks associated with each option. This would include, should it be considered in future that it would be in Mr K’s best interests to go to hospital: a conveyance plan, a care plan for while he is in hospital, a palliative care plan should he deteriorate in hospital (“which is a risk”), and a plan for ongoing care in the community.
Counsel for the Local Authority indicated she had attempted to contact the care home manager for an update on Mr K’s presentation immediately after, and the days following, the assessment. She had been unable to reach him but offered to share the evidence with the other parties once she has done so.
There was also a possibility raised that the care home manager has expressed concerns that the home could possibly not be able to continue to care for Mr K. This will also be pursued in the interim.
Brief reflections
Above all else, I was struck by the collaborative work that is being undertaken in order to ensure the best possible outcome for Mr K. I had the impression, as I often do, that all the parties were prioritising both Mr K’s best interests and his own wishes and feelings.
I was relieved to hear that it hadn’t been necessary to physically restraint Mr K. As I have written for this blog before, physical restraint can be physically and emotionally demanding for both the person who is restrained and for the staff. Any time it is planned for but avoided is a success.
Although I understand that some people may read that the staff “held his hands” as a euphemism for restraint, I imagine it is not. There were many times when, in my role as a carer supporting people who had been detained under the Mental Health Act 1983, I was involved in the planning of potential restraint for a person who had been outright refusing an intervention (often personal care) that was in her or his best interests. When safe and appropriate to do so, reassuring hand holding is a positive first step to take the ‘heat’ out of a situation. Sometimes, this comfort allowed a moment to be facilitated where the intervention could be carried out without the need for more restrictive holds. Where somebody did become suddenly resistive or aggressive, it would be easy to quickly and safely convert hand holding into a physical restraint.
If you begin with out-and-out physical restraint, that means you don’t give the person in question another opportunity to work with you. Starting with restraint symbolises that you have gone into a room having already decided the outcome. In cases where behaviours that challenge can prevent interventions, it is important to maximise the choice available to somebody.
This case will return to Court on Thursday or Friday of the week commencing 28 August 2023. Look out for it on our “Featured Hearings” list for how to observe it yourself.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research takes seriously Iris Marion Young’s claim that older people are an oppressed social group, and is funded by WRoCAH. He tweets @DanielClark132
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