By Claire Martin, 31st October 2024
P is a man in his 40s, with Down Syndrome and learning disabilities. Two years ago, in 2022, he was diagnosed with ‘significant renal problems’. They’ve been difficult to monitor because P’s father, with whom he lives, is said to believe that doctors intend to harm his son.
The applicant NHS Trust (the Royal Free NHS Trust in London) says that P’s life might now be in danger. The Trust is seeking authorisation to remove from his home (by force if necessary) to hospital so that further tests can be carried out and decisions made about treatment in his best interests.
I’ve observed two hearings in this case (COP 20000635) before Ms Justice Harris at the Royal Courts of Justice. First, an urgent (remote) hearing on Friday 18th October 2024, and then a hearing three days later on Monday 21st October 2024. I’ll first describe the first hearing in some detail, to convey the complexity of such pressured decision making in the court. Then I’ll summarise the judgment in second hearing, which was predicated on the aftermath of the first. I’ll end with some final thoughts about urgent medical decisions in the Court of Protection and plans to forcibly remove someone from their home.
18th October Hearing
This first hearing consisted of some quite detailed opening submissions and then witness evidence, and cross-questioning of the witness. I’ll cover each in turn.
Opening Submissions
Victoria Butler-Cole KC represented the applicant NHS Trust. Sophia Roper KC represented P, via the Official Solicitor. P’s father is also a party to the case but (I think) has never attended court for any of the previous hearings, and he wasn’t at this hearing.
I reproduce the opening submissions[1] by both counsel in full because I think they give a flavour of how urgent applications are made to the court, and the types of really difficult decisions judges are faced with, when pressure of medical urgency is presented to them.
As I listened to the submissions, I wondered what I would do if I were the judge. As you read them, you might usefully consider what YOU would do, faced with this information.
Victoria Butler-Cole KC gave a helpful introduction to the case. I knew nothing about it in advance, so this brief summary made all the difference to my understanding of proceedings:
“For the benefit of the observers I can see online, the application by the hospital is for authority to implement a treatment plan for a 43-year-old man with Down Syndrome, learning disabilities and very severe kidney failure. On Tuesday next week, [conveyance] by ambulance, even if [he’s] resisting – [then] immediate blood tests taken [at hospital]. None [has been] taken since 30th August 2024. [He will be] sedated with general anaesthetic and, depending upon how bad his blood tests are, he will either be given hemofiltration or long-term plan for dialysis [with] insertion of a tunnelled line – and dialysis over the next few days. The reason for [this] plan being sought now is that P is known to be very severely affected by kidney disease. Since August, the court has made a number of orders and [there has been] repeated failure by [P’s] father to take him to medical appointments. Crucially, [there are] no further blood tests, so we don’t know how bad his condition is. On [date in September 2024], P visited his GP and declined a blood test – his legs were itching. This is a sign [that the] kidney is deteriorating further. [A] decision [was made] on 11th October … the offer was blood tests the following Monday, but despite indicating he would do it, his father did not take him for the tests.
The Trust’s clear position is that the court needs to make this order urgently today. Steps need to take place between now and Tuesday to get everything ready and all agencies involved. The OS queries why it took until August this year to get proceedings issued, and the court reaching a decision in P’s best interests. We are where we are, and the medical consensus is that P needs to come to hospital urgently. He either needs immediate hemofiltration, or dialysis in a number of days. He will reach the point [where he will] either die or reach a position where he can’t use the dialysis. Unfortunately, his father has a number of objections to facilitating P’s involvement with the treating team. Some relate to a historical complaint about his late wife’s care. The attendance note from the solicitor shows there are other issues – the bottom line is he doesn’t recognise or understand how important this is and doesn’t understand his son may die. The OS has raised a number of issues – one is why district nurses haven’t been able to go to the home and take blood tests. We have tried, and the reason given is that P can get to the GP surgery. [inaudible] …. A very short and easy read [social story] for P … he wasn’t able to get any benefit, but nevertheless a short document has been provided.
The OS is concerned about the police. The police know they must not go in in a heavy-handed manner. The police are aware that they are not the first port of call. Further questions [have been] raised about the secure ambulance company – [and] physical restraint if necessary: have they got information about the risks posed to him about restraint? The consultant can explain – [the] first is that he has unhealthy bones – [there is a] greater risk of injury to P’s bones, and second is he is known to have some sort of breathing difficulty. He doesn’t breathe clearly [and to pay] particular attention to ensure the airway isn’t obstructed. Dr X [renal consultant] can give evidence about the plan, to be amended as required. If there are any questions, then Dr X and Dr Y [anaesthetist] can answer about sedation and anaesthetic. I would invite you to listen to that evidence and make a decision today and then another hearing, possibly the week after next. The long-term question is how to go about giving P long-term dialysis and is it in his best interests to happen. To some extent, admitting him to hospital on Tuesday is recommending that it is in his best interests. Otherwise, he won’t have had a fair opportunity at maintaining his life. One question, if it is in his best interests, is whether [P can stay with his father]. The LA is involved with the family – they would need to identify what the options are if he is discharged somewhere else, not in the care of his father.”
Sophia Roper KC, for P via the Official Solicitor, resisted the LA’s proposal on a number of grounds. The order for forced conveyance on the following Tuesday could wait until Monday afternoon if necessary – and the father could be ordered to take P for blood tests on Monday morning, the results of which would make for more informed decision-making. The transfer plan needs to be better developed to safeguard P. And neither P’s father nor the LA were in court. She was particularly concerned about the father’s absence on procedural grounds of fairness, but also worried that removing P from the home now, without giving his father the opportunity to comply with court orders, would make an already difficult situation still more difficult. She said:
Counsel for P: “Our position remains that we are supportive in principle, but we don’t agree that the court should hear the application or make a decision today, We propose [that the court] hears it on Monday. We were told when we arrived that it [the conveyance to hospital] wasn’t going to be until Tuesday because the police can’t be lined up until then. I appreciate …[inaudible] … [and my] submission is that this can be heard on Monday so [that a] proper amended plan can be heard on Monday. The application is based on [obtaining] blood tests. We were told [on the] 30th August that blood tests are the primary indication for this request to be dealt with VERY urgently. The only evidence since then has been reference to itching legs. In respect of blood tests, those blood tests were known to the Trust on the 27th September [when we were] last in court. [It transpired that P did go to the GP in September but refused to have the blood tests required. His itchy legs were observed, and this is known to be a sign of renal deterioration]. The OS doesn’t understand why this was not raised at the hearing. We do have numerous queries about the plan, and we have set some out in the Position Statement. The plan is important because it is the plan, not the order, which will govern the transfer. [There are] a number of agencies, working together – they may not even have met each other before. It needs to contain all the precautions and safeguards. I don’t want to dwell on the history of this case, but the court cannot be confident about that. Our request is for adjournment – [father] has been served with [inaudible] – I asked Ms Butler-Cole at lunch if he’s been served with an injunction. I don’t know if he has. […] If he has, it can only have been late this morning. There is a simple requirement of fairness – proper notice. […] There is no suggestion that this is a proper case for ex parte … he appears not to have had adequate notice. So, the OS position is that the court should adjourn the substantive application until Monday, and join the Local Authority [LA] NOW; they are integral to this plan – in particular anything around the easy read document and needing to communicate it to P, rather than simply saying we’ve produced it. The LA should be required to carry out welfare checks over the weekend, and [inaudible] we would ask that that is done by the end of tomorrow. We submit that the court should also make an order, not with a penal notice, directing him [P’s father] to take P for blood tests on Monday morning. If he does comply with that order, without imposing a penal notice on him, it will give some indication of what he would do but also gives the results of blood tests. If he does not comply, the court is in no worse a position. Court should direct that the LA attends on Monday – they were asked today and hoped that they could help with a number of things. The lawyer for the LA did not think he could assist, so decided not to [attend]. It’s not that he was unable to attend, he chose not to attend. They are integral and they should be here.
We also ask that Private Transport UK has a representative available remotely and the same an appropriate contact from the police – though we recognise the chances of getting someone from the police is low. Earlier this week, the court heard a hearing and someone did attend from the private ambulance service. We would ask the Trust serves the LA with the order made today and everything is served on [P’s father] by the end of today, including any application for an injunction and draft order and explanation of evidence on which the application is made. You will see that [P’s father] may have some of his own problems [referred to evidence from the October draft order]. He’s not my client but the court should be cautious about making an injunction against someone who may not be in a position to understand it.
Your Ladyship, although there have been orders including recitals for [P’s father] to do things, and he has elected then not to take P to appointments, there has not been an order to date that he take P to appointments. He should be given that opportunity. There is a window of opportunity for him to demonstrate that compliance. [counsel’s emphasis]
Judge: So [this is the] last chance, potentially, to avoid a highly distressing [situation which is] unlikely to provide the foundation for any long-term treatment of [P’s] condition
Counsel for P: That is entirely the point. To put it bluntly it’s all very well getting him into hospital – but it might destroy future [compliance]. We don’t know that it will. It’s not to say that district nurses won’t attend without investigating that further and getting blood tests through [P’s father’s] cooperation. It may be that he does take him in on Monday. The reference in the plan to other investigations … they could be done if he presented. The transfer plan has two alternative parts – one for immediate hemofiltration, if the blood test shows it is [necessary], then hospital will be 24 hrs ahead. If it’s less urgent, then the hospital will still want to keep him in hospital, probably sedated in intensive care. There is a strategy with no exit plan – there are notional plans to discharge him somewhere else, other than with his father, but no consideration has been given to that.”
I gleaned from these submissions that: a) there have been several hearings for P before, in relation to his kidney failure and how to monitor it; and b) that the Official Solicitor is wondering why the NHS Trust is bringing the application as an urgent case, when (she said) ‘those blood tests were known to the Trust on the 27th September’. I think what she meant was that the Trust knew that the blood tests weren’t taken in September, and it was known that there were clinical signs of deterioration in P’s condition because he was scratching his itchy legs – which is a sign of kidney failure. And the OS was asking – why wasn’t anything done then? My sense was that the OS was trying to establish: why now? And why so urgent that it has to be done by force, when all the usual steps (court orders and preparing P via a social story) have not yet been taken in relation to securing the father’s cooperation.
The proposal by the NHS Trust did make me wonder: if it’s SO medically urgent, why are they waiting until Tuesday, four days ahead?
Having heard these two submissions, the judge had to make a decision about whether or not to order P’s forced conveyance to hospital by ambulance on the following Tuesday. (What would you decide in this situation?)
The judge expressed her emerging thoughts:
“Ms Victoria Butler-Cole KC, I see some force in what has been said by the OS. In terms of urgency, well of course this is urgent, but on your own plan this cannot be implemented until Tuesday, which does give some time. You have the medical team here and their time is valuable – but [I see] three benefits. [First, it enables us] to allow the Trust to address the concerns about the treatment plan and put as robust a plan in place [as possible]; Second, it does give the opportunity for [P’s father] to attend court, to understand, through orders made today, the point of seriousness this has now reached for his son and in terms of legal intervention, and gives proper notice and proper opportunity to consider matters and be heard, if he so chooses to attend. And we can be satisfied procedurally, [that] fairness [has been] afforded. And, third and most powerfully, if there is still any prospect of avoiding this being done in this way, which will inevitably be highly distressing for P and his father, we should take every opportunity to do so. If the order can be made today, that P is presented at hospital for blood tests on Monday morning, that will give us better information about his state of health and the clinical recommendations of the team. But I am concerned that if we don’t attempt it, and the plan of the Trust is implemented on Tuesday, we are on a pathway in terms of any long-term care for a chronic issue [and] we may have undermined prospects… […] It might not work and the adverse consequences for P are unavoidable – but it at least it gives an opportunity at this eleventh hour to see if can be avoided.”
Counsel for the Trust said that the OS’s submissions did not ‘bear reality’, stating that even if P did go to the GP, the blood-test results would not be returned within a timeframe that would work.
Harris J asked whether there was any reason that the court couldn’t order attendance at hospital rather than the GP. Counsel for the Trust said that hospital would be ‘more sensible’ but maintained that if P attended hospital on Monday, and needed immediate hemofiltration, the clinical team couldn’t delay treatment until after a subsequent hearing. This made sense – if P was seen at hospital and deemed at significant risk, then waiting to provide that treatment would be unethical. Counsel for the Trust continued: “I am concerned some things suggested don’t bear relation to what is achievable and realistic for P”.
Counsel for P clarified that her submission was that the court would reconvene on Monday not Tuesday. The judge further queried the reasoning of the Trust’s position:
“I don’t fully understand that submission. My understanding is, of course blood tests need to happen and clinical team’s [view] is that it is urgent. As I understood it, in terms of the treatment pathway, there is urgent dialysis or treatment options spread over a few days and blood tests will tell us what level of crisis it is at this point. I take your point – but I had understood two levels of urgency. On your own plan, it wasn’t until Tuesday that you were able to get the blood tests. Of course, if you can take them on Monday and they show imminent intervention [is needed] then that is what happens, otherwise then it can come back to court.”
This seemed eminently sensible to me. If P’s father did take him to hospital, as ordered, for the necessary blood tests on Monday, then the clinical team would be in possession of knowledge about P’s condition earlierthan they had planned in the proposal (which was Tuesday, by forced conveyance).
Counsel for P insisted: I will quickly make a point: obviously were P to get to hospital voluntarily, it would be immensely preferable than by ambulance with restraint.
Following the judge’s suggestion that the court could decide to make an order for P’s father to take P to hospital on Monday morning, counsel for the Trust wanted to establish that there would be ‘no delay to the Tuesday plan’, were that not to happen.
Counsel for the Trust:
I would just draw your attention to the fact that the solicitor had tried to explain to [P’s father] that it is in P’s best interests to have the blood test. It reignited his anger and he said it was P’s decision and he asked for the name of the judge, and said he would publish it all over the world. My submission is that it is highly unlikely that he is coming to hospital on Monday morning.
So, whereas the OS wants to give the father one more chance to cooperate in securing his son’s medical treatment, the Trust’s view is that this simply won’t work and that things are beyond that point already.
Witness Evidence
Next, the consultant responsible for dialysis, Dr X, was sworn in.
Counsel for the Trust had been keen for the clinical team to give evidence and to have an opportunity to explain why they believed their plan to be the most persuasive.
Dr X explained that P was likely to need urgent treatment of one form or another and that the plan that they had formulated meant that P wouldn’t be waiting in areas of the hospital unnecessarily, which was why (even though they were now saying it was urgent) they weren’t proposing to do the tests over the weekend. She said that Tuesday would be the safest day with resource availability planned to make P’s experience as smooth as possible. She was clear that ‘it is very important that the court understands’.
Counsel for the Trust enquired whether attending somewhere else in the hospital would mean that the blood results would be ‘obtained more swiftly’. Dr X explained that in A&E P could be ‘moved through more quickly’, but expressed concern that, should the blood results suggest urgent treatment was needed, the clinical team would ‘have no powers to hold him in hospital unless he was so clinically unwell we could invoke the usual processes’. She also confirmed that she was worried that, if P did attend A&E, and if he did have the blood test, he would be free to leave whilst the results were awaited.
Counsel for the Trust asked Dr X about her views on the ‘other suggestions’ that had been made by the OS:
Dr X: They are based on a number of false assumptions. Being fair to P’s father needs to be balanced with what can be put in place for P. There has been a repeated pattern of behaviour from [P’s father] over two years – that’s not going to change just because a court order has been put in place. [P’s father] has a profound suspicion of hospital medical professionals. He has taught P to think that doctors will kill him. P believes they killed his mother. [It has] been instilled in him over a period of years. The chances that he [P’s father] will cooperate with a plan to bring him to hospital on Monday is very low indeed. He wouldn’t understand what the blood tests will mean on Monday – I have no reason to believe that [P’s father] would allow P to pop into the ambulance – I don’t think it’s helpful. I understand the rationale and have sympathies with not wishing to do harm to P, but that’s based on my and others’ knowledge over the years.
Dr X was then cross-questioned by Sophia Roper, counsel for P. Dr X confirmed that P had attended hospital as recently as 1st October, for a CT scan. She explained this was because no needles were involved (and he believes that needles mean doctors are going to kill him). Dr X also explained that, at the beginning of September, tests suggested that P had ‘severe renal problems but nothing of a life-threatening nature’ and that she has become increasingly concerned, week by week, that, without blood tests, the extent of P’s kidney failure is unknown. She emphasised ‘When someone has poor kidney function like this, it’s not uncommon for them to be without symptoms – people tend to think there’s nothing wrong, when in actual fact they are in an extraordinarily vulnerable position’.
It is understandable that when medical facts are presented so starkly, alongside a clear plan for how to investigate and treat the patient, the way ahead might seem obvious. But that would be to conflate the medical facts about a person’s health with how (not what) care is delivered.
I found counsel for P’s forensic logic an instructive lesson in not conflating the question of what should be done with how it should be done.
Counsel for P: We don’t take issue with the point that he is extremely fragile and vulnerable. There is no dispute between the Trust and the OS on that point. It is the way in which he comes into hospital.
She then took the witness through detailed questioning about what the process of attending at different departments in the hospital would entail. What time will be allowed to ‘persuade’ P to comply? What time is P anticipated to arrive at hospital? How long do the blood tests take to come back?
Counsel for P established that some blood test results were almost immediate and some took up to 90 minutes. Why can’t P therefore be directed to turn up (on Monday) at 11.30am, when blood results would then be back by 2pm latest? Dr X explained: No, because if he’s directed to come to hospital, it’s different to going to phlebotomy.
Counsel for P: Why can’t he be directed somewhere he can get the [quickest results]?
Dr X: That is possible, obviously assuming he turns up at all.
Counsel for P: Of course, but it would be the same speed the following day.
The flavour of Dr X’s answers was essentially about the level of perceived control the hospital team had over the situation, once P was in hospital. Of course, if the Trust’s proposal was endorsed by the judge, then P’s father (on the Tuesday) wouldn’t even be at the hospital – a far preferable scenario for the treating team. Whereas, Counsel for P was suggesting a plan that would mean P and his father would (if they complied) be at the hospital together, and Dr X was concerned that, in the unlikely event this happened, P’s father would attempt to leave the hospital with P, regardless of the results (if he waited for them at all).
Dr X confirmed: “It’s possible but it puts us into an uncontrolled situation. We would be approaching them and saying ‘blood tests are abnormal and you need to stay’, without having lined up and in place behind that, what to do if they say ‘No’.”
Dr X went on to say that everything had been lined up for Tuesday: secure ambulance transport, Local Authority staff known to P, police presence, where the tests are carried out (not in A&E), bed space, an anaesthetist available for a full day, consultants that know P. The hospital had clearly put a lot of thought into making sure that resources, in the form of people on the ground, were available in a planned way on the Tuesday.
I was impressed by the forensic manner in which counsel for P cross-questioned Dr X, however. Although the hospital plan seemed eminently sensible (from a controlled, clinical, perspective), counsel for P did not lose sight of the fact that the plan, if it was initiated, would mean forcible removal (what they referred to as ‘extraction and conveyance’) of P, likely with restraint, and potential need for police intervention if P’s father became aggressive. This would be likely to be traumatic for P – surely better to be avoided if at all possible?
It transpired that the plan itself had not been discussed with P, nor was it included in the easy-read documents provided to him outlining the plan (in general, rather than the specific ‘extraction and conveyance’ plan).
Counsel for P: I am trying to work out when this plan is going to be put to P. If you don’t know, please say you don’t know. The plan earlier this week with the learning disability nurse, suggested that the learning disability team complete a social story with P about the upcoming admission, then another for a joint visit with two other Local Authority staff (Social Worker and Learning Disability nurse) …
Dr X: That’s correct but P’s father cancelled the visit.
Dr X couldn’t inform the court about whether it was still hoped that the social story meeting would happen, which meant there was doubt as to whether any explanation of admission plans would be offered to P before his ‘extraction and conveyance’. How would he know what was going on? It was sounding quite frightening for P.
Further questioning about the ‘extraction and conveyance’ plan focused on chemical and physical restraint, under what circumstances and where these would be administered, exactly where the police will be standing when the secure ambulance service knocks on P’s door, what the police know about P’s father’s views (Dr X: What we have conveyed to the police is what we know – that he holds a number of very clear beliefs about what would happen to P if he goes to hospital. Obviously, they’re not normal beliefs).
Dr X then gave evidence about the potential clinical interventions once in hospital: the worst-case scenario would require general anaesthetic and critical care for renal replacement therapy; if the results suggest less urgency, then dialysis in a number of days would be indicated. He will require what Dr X called a ‘tunnelled line’, which, she explained (unlike an emergency line at the side of the neck) is situated further down at the front of the chest, near the armpit. Dr X: It’s undeniably present, but it doesn’t stick out of your body, and does need to be kept dry. […] For the first few weeks, it’s thoroughly covered and sutured [in place].
Counsel for P explored how P would be prevented from pulling it out. Dr X explained that, ordinarily it is removed under local anaesthetic. It sounded like if P did try to pull it out, it would be extremely painful. The hospital had lined up 1:1 nursing and the Local Authority had confirmed a known support worker for 8 hours a day for the time that P was in hospital. Dr X said that P would be ’distracted and kept busy’ to attempt to prevent him from pulling out the line.
It did seem to be a very detailed plan with various staff lined up to provide support, both during the ‘extraction’, at hospital during investigations, and afterwards, to facilitate whatever treatment was needed.
The judge then questioned Dr X to clarify exactly what would be the disadvantages to the clinical team of implementing the plan proposed by the Official Solicitor. That was an interesting exchange:
Judge (J): Thank you Dr X. [What are the] advantages and disadvantages of each approach? What is being suggested is a possible order today for [P’s] father to attend with his son on Monday morning at hospital, for the purpose of taking blood tests. I understand from your answers, that it can be done in such a way that will work most effectively, [for an] order to come to clinic for blood tests and results in an hour and a half. You don’t see that as something the hospital couldn’t accommodate on Monday morning?
Dr X: He would need to come to A&E. I am not bringing someone to outpatient phlebotomy – it doesn’t sit within their normal remit […] I know we’re talking about subverting …
J: I am not suggesting subverting anything…
Dr X: If we are trying to avoid restraint the order would have to say he would present to A&E and that he would have to stay until the results are back.
J: I am trying to understand advantages and disadvantages – the Monday or the Tuesday. You say on Monday he would have to come into A&E, is that correct?
Dr X: Yes. One test is not available unless he comes through A&E.
J: But that’s what you plan on Tuesday. To bring him into A&E?
Dr X: Yes – also A&E because it’s a safe place to have those tests.
J: So, if [he attends] voluntarily on Monday morning and takes the tests, what prevents you taking them on Monday?
Dr X: If he comes into A&E on Monday morning, same …. way.
J: OK so … if that process takes place and the bloods are taken and he leaves with his dad, and [there’s] no restriction on him doing so and you don’t stop him, what is the disadvantage to YOU in terms of clinical decision making, in having those tests back and knowing what you are facing? [judge’s emphasis]
Dr X: I think it’s about the decision I would be making would be different. At the moment, I am making a decision it’s better to wait until Tuesday when we have resources in place – police etc… an allocated renal consultant, weighing up against benefit of waiting longer. As a team we think it’s better to do that on the information now. If he attends and has blood tests Monday, that completely changes my decision making – I can’t say …. for example, [that I] know it’s fine to wait until Tuesday, but I might know his life is at risk and he needs to be brought back to hospital urgently and we wouldn’t have those resources in place, but morally I would have to be trying to get him to hospital – I might be sending an ambulance – contacting court for emergency order, he might be coming in at night…
Dr X was clearly concerned about a process that had multiple uncertainties, and the team had decided that, whilst urgent, a more managed process of bringing P into hospital was preferable, which meant delaying for another four days. The judge, nevertheless, followed her line of questioning about the advantages and disadvantages to the clinical team:
J: I understand – don’t misunderstand me, I understand the difficulties of this. In a sense, ignorance is bliss to some extent. Once you are possessed of the information you might need to bring him in, but if you don’t have it until Tues morning you are not in that ethical dilemma?
Dr X: You can only make decision based on the information you’ve got. If he had blood tests, we would struggle to bring him in any sooner anyway. It probably wouldn’t make a great deal of difference. I think there’s something about the futility of this and context of multiple, multiple …. I don’t understand why this was not mandated by court previously. [Dr X’s emphasis]
J: That’s not my focus today. … So, it may still be the right decision that nothing is done until Tuesday, to have the wraparound care, but what you might be possessed of is information about IMMEDIATE life and death care [that] otherwise, you won’t have the immediate benefit of. [That is] one potential beneficial outcome for him? [judge’s emphasis]
Dr X: I don’t understand why you’d wait until Monday on that basis. If the intended benefit …. If your point about dealing with an urgently life-threatening result is the driver, why would we wait until Monday?
J: I am trying to understand the various advantages and disadvantages. In terms of benefits to the hospital and yourself as a clinical team, is there any benefit to you in having clearer knowledge and understanding before he is extracted and brought to hospital – any benefit to you as a team, whenever they are taken, of are you down pathway 1 or pathway 2? Rather than taking blood, waiting and then plan?
Dr X: Yes there’s an obvious – knowledge is always a good thing but what I would say is that if P does attend for a test on any day and it shows we need to initiate immediately – then it will need to be immediate …
J: From a hospital management point of view, does it make any difference as you’ve said, in attempting to get these blood tests via their own free will on a Saturday ..
Dr X: It’s a resource issue – for theatre and anaesthetics it’s an issue, not A&E. Staffing and numbers on duty at the weekend are significantly reduced. So, there are issues. As we discussed when we weighed up the pros and cons in the absence of blood tests, we decided it’s better to do it in the calm light of a fully resourced weekday, and the police have already told us they will struggle to commit the resource. But of course, we would have to act if the bloods showed [P’s life was imminently in danger].
J: All right thank you Dr X. That’s helpful.
So, the balance was between enabling a better resourced, calm and controlled situation at the hospital (but P being forcibly ‘extracted and conveyed’) and a less controlled, more unpredictable situation at hospital (but- potentially, in the OS plan – P attending voluntarily with his father) and avoiding the distress and likely physical restraint at home. It was abundantly clear that the hospital had no expectation that P’s father would obey such a court order, and Dr X expressed some frustration that the court had not acted sooner (seemingly at earlier hearings).
I kept wondering what I would do in the judge’s shoes. I was struggling to understand why not make the court order for P to attend hospital on Monday? If he attends, the team has information about P’s condition earlier, even if he leaves and they then need to enact the ‘extraction’ plan. If he doesn’t attend, nothing has been lost and procedural fairness (for P’s father) has been followed.
After a break of ten minutes for counsel to take instruction, their positions remained the same.
Victoria Butler-Cole for the applicant Trust:
“I have had a helpful discussion with Dr X and Dr Y (anaesthetist). We don’t have an objection to the court listing another hearing to allow [P’s] father to have a chance [to attend court] – but we don’t support a court order for him to take P to hospital prior to that time. The results won’t be in for 90 minutes on that afternoon. If they are bad the doctors will be clinically and ethically obliged to act on them. [This will] involve sending an ambulance to wherever he is – home or the Royal Courts of Justice, if he has attended with his father. That will mean that the sorts of steps in a carefully planned treatment will be done on a Monday evening, there won’t be staff familiar with the plan, to execute it, on duty, and none of the planning that has been put in place – and my instructions are that it won’t be as safe.”
The judge, again, found this argument difficult to understand logically:
“Sorry Miss Butler-Cole, if that’s the clinical decision that it is a better and safer route to await until Tuesday morning, what is the ethical dilemma? Either the results come back and if they are so, so, so concerning that it can’t wait, then surely, it’s better to know that information; otherwise, it risks the life of P. If they’re bad but overall, it can await until Tuesday for a safer extraction and treatment plan, that’s in the best interests of the patient. I am struggling [to understand] how being possessed of the information …. how can that be a bad thing for the clinical team to be possessed of that information in terms of a decision to treat P?”
I found myself flip-flopping between positions. The strength of the argument from the Trust clinicians was powerful: they know P’s father, they have tried and tried and tried to secure his cooperation with treatment for P, they are worried that if (and to them it was a big if) P attended hospital on Monday, all of the careful plans for tests with familiar clinicians in attendance, dedicated community team support staff on hand and secure ambulance and police back up would be derailed.
Counsel for P then made lengthy final submissions, with the most (for me) persuasive point being:
“Arguably [this is a] draconian retrieval plan, everybody can see the long-term risk to compliance. The argument about not making an order for Monday. The OS shares the court’s struggle with the logic of that. If P comes in on Monday and urgently requires treatment and legal authorisation is needed, s4 Mental Capacity Act [can be used]. If resources are there, then the hospital can do it. It may be the bloods are such that it is immediate; it may be it can be explained to P. If clinicians think it’s a bad idea, he is no worse off than under the Trust application. But if he is seriously ill on Monday, it must be in his best interests to receive it then, than for clinicians to remain in ignorance until Tuesday.”
After setting out the various issues that were not in contention, and the detail of counsels’ submissions for those that were, Ms Justice Harris delivered the following judgment:
The issue for the court to determine is whether or not [P’s] father should be ordered to attend at hospital on Monday. I am going to make that order.
I am satisfied that making that order is in the best interests of P and the advantages of such an order clearly outweigh the disadvantages. It also gives, in my judgment, a final opportunity, a lesser draconian and proportionate approach with engaging [P’s] father’s compliance with best interest orders of this court. What the Trust seeks is of course a very draconian intervention on Tuesday – it may well be the only approach in the best interests of P on Monday – but it is incumbent on the Trust and this court to try to avoid every possible measure to avoid that if it can be secured. It would be for [P’s] father to attend for blood tests at A&E with P on Monday at 11am and to comply with the recommended treatment by the clinical team.
In terms of the disadvantages of such an approach, I am satisfied that it is difficult to ascertain any disadvantage to P in attending on Monday morning, for blood tests, which give vital and important information to the clinical team as to necessary treatment. If his father attends with him , it will furnish the clinical team with vital information, and in my judgment the earlier they have that information, the better. First, it will help them to understand the urgency with which he requires treatment. It may be that he doesn’t require urgent treatment and that Plan B …. [can be put in place] and [they can] seek to implement dialysis in a planned way. In my judgment that will be important information for the clinical team on Tuesday if extraction and conveyance is required.
Alternatively, if the results suggest that such is the deterioration to P’s health that we are now in a critical position, it much surely be in the best interests of the clinical team [to know] as soon as possible. I appreciate that it places them in a difficult decision-making position, [they] may need to consider accelerating plans if the tests suggest a critical stage in his health. But it must surely be in P’s best interests that they are furnished with that information, rather than what has been described as deliberate ignorance and waiting until Tuesday.
Whilst matters may be urgent it may still be in [P’s] best interests to await Tuesday, to ensure the best possible conveyance and safest. If required, an urgent application can be made for court decision-making around any accelerated plan. The court is available to assist.
In my judgment, it will assist P himself in terms of any social story work to help with extraction — what is known about the urgency of treatment and what it will involve. And in terms of engaging [P’s] father. So, in my judgment, in terms of the benefits to P they are, firstly, that any extreme urgency is identified in terms of need for admission and treatment, the team can make properly informed decision making. And in terms of any admission, knowing in advance will assist them on Tuesday morning both in terms of explaining to his father and P at hospital.
I understand the Trust are deeply sceptical that ordering [P’s] father to do this is not going to be successful – [he has] not engaged over a long period. I am clear that every proportionate step must be taken. [P’s] father has not yet been ordered by this court to attend for any blood tests. The next proportionate step is to make that order and give him the opportunity to comply before we go to that draconian measure. It may yield no positive result, but it is incumbent on us to attempt for the best interests of P and in the long-term best interests for treatment. And to engage [P’s] father in the least distressing way. In my judgment, P has nothing to lose. There are no perceived disadvantages for the clinical team, P or this court, being armed with the best possible accurate information.
I am going to make that order in Ps best interests this afternoon and relist for 2pm on Monday afternoon.”
21st October Hearing
The hearing started at 2.35pm. Counsel for the Trust was now Parishil Patel KC. There were also two further counsel: a Mr Lockhart for the Local Authority (I think) and Jake Rylatt (I think, but I don’t know who he was representing). Sophia Roper remained counsel for P via the Official Solicitor (and was on remote link).
Two witnesses (one for the private secure ambulance service and one a Social Worker) were also in court on the remote link.
P’s father had not taken him for blood tests that morning.
Parishil Patel KC, for the Trust, submitted that they were seeking the same authorisation as before: that P be brought by secure ambulance to hospital the following day for investigations and appropriate treatment, using the least force necessary.
Sophia Roper for P said “we are happy to proceed as Mr Patel suggests”, subject to confirmation from the ambulance service that they understand P’s particular physical health vulnerabilities and understand the ‘personalised approach’ needed to keep him safe.
The judge spoke to the representative from the ambulance service who confirmed that P’s needs were understood.
A final issue that counsel for P raised was about the police. The Social Worker informed the court that, in fact, there was no guarantee that the police would be available the following day. Police attendance would be first response officers, not officers who had been briefed previously about the plan. The Social Worker himself was to call 101 in the morning and they would do their best to attend. This seemed very different to the definite police presence proposed at the hearing the previous week. It was later agreed that the court order would state that the plan would only go ahead if the police confirm their attendance in the morning. The transfer team (ambulance service, social and support workers) did not feel safe to carry out the ‘extraction and conveyance’ unless the police were present. Further, however, it was made clear that the police would not be involved in any restraint of P himself.
Parishil Patel confirmed the final plan:
The plan will be implemented in the morning of Tuesday 22nd October 2024. Police involved in the development of the plan have indicated that they should be able to attend the home, subject to other commitments that day. [Social Worker] will call the police to request their attendance and the plan will only proceed if the police are in attendance. The police will remain outside the property unless they are required to manage [P’s] father’s behaviour. The transport team is to manage P’s safe transfer to hospital. The police are NOT involved in P’s transfer to hospital.
In the event that P and his father are not at the property on Tuesday morning, [the team] will attend later and if required on the Wednesday morning.
If it’s possible to admit P to hospital, the clinical team at the hospital should have a good idea by Friday 25th October [about P’s needs].
Harris J then gave her final judgment authorising that plan. It is anticipated that the case will return to court on Friday 8th November 2024.
Final Thoughts
I was struck, in both the Friday and Monday hearings, by the calm consideration that the judge and counsel for P gave to what were presented as the only realistic options for P’s medical needs to be addressed.
Of course, in the end, the hospital staff were right: P’s father did not take him for blood tests, even with a court order. I don’t think that made the judge’s original decision wrong. The Trust’s prediction (of non-adherence to the court order) turned out to have been correct – but nothing had been lost by one last attempt at securing P’s father’s cooperation.
I imagine it is very difficult to deny medical teams’ proposals in the face of what is presented as a requirement for a very urgent decision in their favour. However, in this case, the interim order did not detract from the Trust’s original plan at all – so I fully understand why the judge made the decision she did. I think it was right at the time Harris J made it. The problem with approving the Trust’s plan on the Friday was that (in Sophia Roper’s words) a ‘draconian’ order would have been made – without the last-ditch attempt to work with P’s father and avoid a potentially traumatic ‘extraction’ for P.
But, it wasn’t to be.
So, then, on the Monday the Trust’s plan became the right decision.
Ian Brownhill’s blog for the OJCOP project, on conveyance plans in the Court of Protection, suggests the following:
“What a good conveyance plan looks like
In my experience, good conveyance plans consider the following issues:
- P: Who is P, what is their prior experience of medical treatment, what are their future needs likely to be, how can we prevent their needs intensifying? What does P want?
- Property: Where does P live? How do we extract them from that property? What is our lawful ability to enter? How do we physically enter?
- People: Who do we need to be part of the conveyance? Is this a case where we need to use sedation (or even general anaesthesia) in someone’s living room, or is it a case where P will be driven to hospital in a family member’s car? Do we need other parties (perhaps a fifth P) to be involved?
- Passing it on: Who do we need to share P’s experience with for the future? What can we learn from this case that we can pass on so that other professionals might learn from it?”
My observations of the two hearings certainly fulfilled the first four points above. I deduced from the Trust doctor’s evidence that the Trust and Social Work team have been working hard to ‘prevent [P’s] needs intensifying’, to no avail. The only query I had about the wider ‘system’ around P being less facilitative was the mention (at the Friday hearing), by counsel for the Trust, that P’s GP wouldn’t provide for district nurses to attend to P at home, with the aim of carrying out blood tests. The reason the Trust was given was that P can get to the surgery. This approach seems unhelpfully obstructive – especially when the concern was of significant deterioration to P’s health. Though it seems unlikely (should they have gone to his home) that P and his father would have cooperated, it would have provided another opportunity to avoid what will have been a ‘draconian’ and distressing experience for P last week, being forcibly removed from home and from his father, possibly restrained both physically and chemically and taken to hospital for procedures he is terrified about.
I hope that the ‘extraction and conveyance’ of P to hospital went as well as it possibly could for him.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin and on BlueSky as @doccmartin.bsky.social
[1] These are accurate so far as my contemporaneous notes allowed me to type them. We cannot record the hearings, and some phrases are missed and there are likely to be some inaccuracies).
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