Case Law Update – Key COP cases between August – December 2023

Here is the round-up of the key Court of Protection cases from the period August – December 2023, in which we believe our readers will be most interested. Please follow the link within the case summary to access the full judgment and do not hesitate to contact our team to discuss any particular case in more detail. 

Haemodialysis: serious medical treatment and Best Interests decisions 

Nottingham University Hospitals NHS Trust -v- JM & Anor [2023] EWCOP 38 (18 August 2023)

This serious medical treatment case concerns JM, a 26-year-old man who does not accept his diagnosis of chronic kidney disease or his need for dialysis. JM was diagnosed with autism at the age of five and unfortunately received very little support for it. JM’s mother (AM) has mental health issues having been diagnosed with schizophrenia.

JM was compliant with treatment when in a hospital setting but frequently refused to attend appointments as an outpatient when living at his mother’s home. Repeated attempts to explain the need for dialysis and the potentially fatal consequence of not having it were unsuccessful, even with significant specialist psychological support.

At the best interests meeting held, five treatment options were considered:

1. General anaesthetic to reinsert the dialysis line and thereby enable reinstatement of regular dialysis. Allow JM to go home; 
2. As no 1 above but instead of allowing JM to go home, detain in hospital until a secure environment can be found; 
3. No immediate plan for further dialysis and instead palliate, with offer of dialysis if visibly deteriorating. If at any point JM agrees to dialysis then to insert a dialysis line, and attempt to treat in best interests if he ceases to object;
4. As no 3 above but no attempt to treat if he ceases to object. A DNACPR would be in place unless he agreed to dialysis and line insertion;
5. No immediate plan for further dialysis and instead palliate, with no attempts to discuss further dialysis with him.

Mr Justice Hayden considered that forced restraint in the face of JM’s expressed opposition, or at a time when he is no longer able to resist, would compromise his dignity, cause him considerable distress, compromise his relationship with hospital staff and may retraumatise him. 

Mr Justice Hayden opined that:

“JM’s views on dialysis arise from the complex interplay of his psychological functioning and his life experiences. This is no doubt true for all of us but in JM’s case, both are disordered… Nonetheless, JM’s own reality, even though it greatly differs from ours, requires to be respected. It is in this way that the autonomy of the uncapacious is respected. That does not mean that their views prevail, but it does mean that they must be afforded weight. As I have set out above, “human dignity is predicated on a universal understanding that human beings possess a unique value which is intrinsic to the human condition”.

Mr Justice Hayden met with JM on a private video link and JM told him that he (JM) did not want to die. Mr Justice Hayden explained that the decision was JM’s to make (ie to accept dialysis) and consequently no restraint would be used to force him to have dialysis. 

This case highlights that restraint without resistance but where there is a clear history of strong opposition to treatment which is on the evidence likely to compromise P’s dignity should be used cautiously. 

Capacity, Contact and Inherent Jurisdiction 

RK, Re (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37 (18 August 2023)

This application concerned R, a 30-year-old woman who currently resides in supported living accommodation. R has diagnoses of Down’s Syndrome, a moderate to severe learning disability, and she is partially sighted. She has a full-scale IQ of 60 and has some expressive and receptive communication difficulties.

R’s family invited the Court to make the following declarations and orders that:

1. R lacks capacity to make decisions about contact;
    
2. R is susceptible to undue influence, and measures need to be put into place to protect her from this;
    
3. R lacks capacity to revoke the Legal Power of Attorney (LPA) created in respect of property and affairs and health and welfare.

   If, contrary to the case advanced by R’s family, the Judge took the view that R has capacity to decide with whom she has contact, the family invited the Court:
    

4. To make an order under its inherent jurisdiction in relation to supporting contact between R and her family.

The application came before Mr Justice Cobb, who identified the core disputed issue as being whether R had capacity to decide on having contact with her family and with others. He concluded that the family had not rebutted the presumption that R has capacity and in relation to R’s capacity to make decisions in relation to contact determined as follows: 

“I start from the important premise that a person must be assumed to have capacity unless it is established that they lack capacity (section 1(2) MCA 2005). The burden of proof lies on the person or body asserting a lack of capacity, in this case the Applicant and the Third Respondent; the standard of proof is the balance of probabilities.”

A salient reminder that capacious individuals are permitted to make an unwise decision, even if it is converse to medical or expert opinion. If P can understand information, use and weigh it up to come to a decision and communicate this, their decision will stand. 

End of life care and best interest decisions: providing life sustaining treatment to P

Guy’s And St Thomas’ NHS Foundation Trust -v- Mrs VA & Anor [2023] EWCOP 39 (25 August 2023)

This case concerns VA, a 78-year-old woman, who had suffered severe brain injury following a series of cardiac arrests and imaging showing her to have ischaemic encephalopathy following cardiac arrest.

The Trust issued proceedings after agreement could not be reached with VA’s family as to the treatment in VA’s best interests and after several hearings and challenges, the question of whether it was in VA’s best interests to undergo extubation and palliative care or to have a tracheostomy and PEG inserted or simply be extubated was crystallised as the issue for determination. VA’s family believed that the clinician’s assessment of VA’s limited responses was overstated, although they did not contest that she would not be able to have a full recovery. 

Mr Justice Hayden explored the law around the duties of doctors, consent to medical treatment and best interests before considering the family’s evidence, which he concluded did not provide ‘secure ground’ for determining VA’s wishes. He was clear though that privacy and independence were important to her as he noted:

“To justify continuing the invasive procedure of the tracheostomy, deep suctioning and PEG in circumstances where there can be no medical benefit and only physical burden, I would have to be satisfied that this is what Mrs VA would really have wanted. Even then, her wishes and feelings would not be determinative.”

The Court ’s role where P lacks capacity to consent to medical treatment is well established. Whilst the presumption in favour of approving life-sustaining treatment is powerful, it is not absolute and there is no obligation on a patient with decision-making capacity to accept life-saving treatment, and equally doctors are neither entitled nor obliged to give it. 

Mr Justice Hayden concluded that extubation and palliative care focusing on giving the best end of life care to VA was in her best interests and the declaration (supported by the Official Solicitor) granted. 

Haemodialysis: the importance of making reasonable adjustments to respond to the cognitive and physical needs of P

Norfolk and Norwich University Hospitals NHS Foundation Trust & Ors -v- Tooke & Ors [2023] EWCOP 45 (20 October 2023)

This case concerns a young autistic man with severe learning disabilities and William’s syndrome, suffering from end-stage renal failure. Whilst the names of the treating clinicians remained subject to reporting restrictions, the reporting restrictions were lifted to enable Jordan Tooke’s (Jordan) name to enter into the public domain. 

Jordan had a long-standing phobia of hospitals in general and needles in particular. He was placed on the transplant list but despite some positive achievements on a needle desensitisation programme, the conclusion was reached that he would not be able to undertake haemodialysis without sedation.

Mr Justice Hayden (the Judge) said he agreed with the submission advanced on behalf of Jordan that “stripped to its basics this case is truly about life-sustaining treatment ie, whether it would be lawful, right and in Jordan’s best interests to receive haemodialysis even where that can only be achieved by the unusual measure of intravenous sedation throughout the process…..it follows that we are really considering matters of life and death.”

The Judge stressed that whilst careful attention must be afforded to the opinions and analysis of experienced medical professionals, these opinions always require to be considered in the context of all the other evidence. The roles of the Court and the clinician or expert are entirely distinct. It is, ultimately, the Court that is usually best placed to weigh expert evidence against and alongside the other available evidence. It will be rare for the evidence of one doctor or indeed one area of specialism to be determinative of the outcome of a case. At the end of the day, it is the Judge not the doctor who determines the case and, always on the totality of the available evidence.

Further that “In many cases where the Courts are asked to consider issues of this magnitude, the contemplated treatment, usually advanced by the family, is often burdensome but ultimately futile. Here, although dialysis is undoubtedly burdensome, it is certainly not futile. On the contrary, it holds out the possibility, by transplantation, of a restoration to health. The real issue is whether the process of dialysis with all its attendant risks is so contrary to Jordan’s best interests that it should not be pursued. Having regard to Dr M’s clear view that Jordan’s sedation can be managed, I have come to the view that the opportunity of dialysis ought to be afforded to Jordan and that such opportunity can properly be said to be in his best interests.”

This case shows that proceeding carefully and considering all the possible available options to respect P’s known wishes and feelings is an essential part of the decision-making process in determining best interests. 

Capacity to engage in sexual relationships and disclosure 

PN, Re (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44 (20 October 2023)

Mr Justice Poole in this case, explores the question of capacity to engage in sexual relationships and disclose information to others. The case concerns a 34-year-old man, PN, who has lived in the care of a Local Authority for many years due to having significant care needs as a result of his mild learning disability and autistic spectrum disorder (ASD). There was no dispute over PN’s diagnoses or his lack of capacity to conduct proceedings. The issues that required determination were whether PN lacked capacity (a) to make decisions about engagement in sexual relations, (b) disclosing information of the risk of sexual harm he poses to others, and (c) allowing the Local Authority to disclose information about the risk of sexual harm he poses to others.

Mr Justice Poole, upon considering all of the evidence, was satisfied that PN was able to understand, retain, weigh and use all the relevant information when making decisions to engage in sexual activity, both by giving his consent to sexual relations and by initiating sexual activity. The presumption of capacity to decide to engage in sexual relations was not displaced.

He also concluded that that PN had capacity to make decisions in respect of the two remaining issues before the Court and that those findings were consistent with the previous finding that he lacks capacity to make decisions about (non-sexual) contact with others, which whilst on the face of it may appear to be inconsistent, was consistent on the facts of this case. He concluded:

“I appreciate the difficulties those caring for and supporting PN may have in navigating the consequences of findings in relation to capacity. The courts need to try to make decisions that are coherent and that provide clarity for carers and those responsible for acting in P’s best interests. The more refined the decision-making under consideration, the more difficult it can be to delineate the boundaries between different kinds of decision-making and to implement practical care and support. Rather than seeking to identify yet more specific kinds of decision-making, it might be simpler and of more practical use to focus on the core decision-making areas, such as residence, care, contact, marriage, sexual relations, property and affairs, use of social media and the internet, and conduct of litigation, but to be astute to apply the principles involved in assessing capacity to the particular individual characteristics and circumstances of P.” 

Obstetric care: medical vs surgical termination where P lacks capacity 

H, Re (An Adult; Termination) [2023] EWCOP 183 (24 October 2023) 

In this case the Court explores the question of whether a termination of P’s pregnancy was in her best interests.

The case concerned the health and welfare of Ms H, who suffers from schizoaffective disorder and whether:

1. She had capacity to make a decision to consent to terminate her pregnancy; 
2. If she lacked capacity, whether a termination was in her best interests; and 
3. If a termination was in her best interests, whether this should be carried out by a medical or surgical procedure. 

The First and Second Applicants, who were responsible for Ms H’s obstetric care and care of her mental health, sought a declaration that medical termination was in her best interests and Ms H wanted to terminate her pregnancy. 

John McKendrick KC, sitting as a Tier 3 Judge of the Court, considered the interplay between Section 1 of the Abortion Act 1967 (medical termination of pregnancy) and Sections 1-4 of the Mental Capacity Act 2005 and found that: 

“Sadly, there is no good option for Ms H. Both procedures are fraught with risk to her mental health and lesser risks to her physical health.”

However, what swayed the balance in favour of a medical termination was consideration of P’s wishes, feelings and beliefs and regard being given to her reproductive autonomy:

“Having heard all the evidence and met with Ms H, when she clearly told me she wants a medical termination, respect for her autonomy and dignity in matters of her reproductive health, lead me, by applying section 4 of the 2005 Act, to authorise a medical termination in her best interests. I will make that order accordingly pursuant to section 16 of the 2005 Act.”

This case is a salient reminder of the need to uphold individual autonomy alongside the opinion of clinicians. 

Restriction of nutrition and hydration: Best Interest decisions where P has expressed a wish to live

East Suffolk and North Essex NHS Foundation Trust -v- DL & Anor (Rev1) [2023] EWCOP 47 (27 October 2023) 

This case concerned DL, who was detained under section 3 of the Mental Health Act 1983 (MHA) at the Trust. DL has a mild learning disability, complex post-traumatic stress disorder, a dissociative disorder and an Emotionally Unstable Personality Disorder at a borderline level. She has a history of violent behaviours towards herself and others, including those caring for her. Since about August 2023, DL had been restricting her intake of nutrition and hydration. Her intake at the time the case was heard, was considered to be incompatible with life. It was accepted by all parties that without intervention DL would die and that DL wished to live. It was the treatment plan that would sustain her life which was in dispute.

When cross examined, one of DL’s treating clinicians, Dr A, told the Court that DL understood the risk of being refed by tube. From DL’s perspective, those risks were two-fold (i) getting fat; and (ii) being held down. According to Dr A, when considering being fed under anaesthesia, DL increasingly appreciated that it was associated with a risk of death. However, Dr A’s evidence was that although DL could understand the risks and increasingly was able to retain knowledge about those risks, DL could not weigh the risks in the balance and make use of that information to make a choice. The Judge was persuaded by this evidence and found on the balance of probabilities DL could not use and weigh the information that she was presented with as part of the process of making decisions about her hydration and nutrition. She was unable to make a decision for herself in relation to her hydration and nutrition because of an impairment or disturbance in the functioning of her mind or brain.

Consequently, the Judge had to consider three key factors that are likely to arise in most cases where P is found to lack capacity in relation to hydration and nutrition. These were: 

1. P’s Best Interests 
2. A Transport Plan
3. Restraint 

The Judge highlighted the need to always consider the personal circumstances of each P:

“I consider that it is relevant to the decision that I must make that DL’s disorders are rooted in trauma. Her past trauma is, I find, likely to be triggered by imposing restraint against her will or passing a tube through her nose against her will. There is a significant risk on the facts of this case that those events will cause additional trauma and cause DL’s disorders to be aggravated and her presentation to deteriorate still further. There is a significant risk of DL being caused further psychological or psychiatric harm by any such interventions.”

The Judge weighed up all the factors in the balance and declared that providing nutrition and hydration to DL in accordance with a treatment plan and an escalation plan was lawful and in DL’s bests interests. The plan proposed elective admission to a side room on a ward of the hospital, physical restraint to enable IV access and then initial chemical restraint/sedation to a level where DL required minimal physical restraint. If DL was unable to be safely managed on the ward, she would be escalated to ITU. Escalation would require sedation and a PICC line. 

When faced with cases such as DL’s, it is fundamental to fully appreciate P’s personal circumstances and the degree of autonomy that individuals should have over their decision-making.

The question of the OS’s costs in serious medical treatment cases 

GH, Re (Mastectomy: Best Interests: Costs) [2023] EWCOP 50 (06 November 2023) 

Mr Justice Poole considered whether GH, a 52 year old woman with schizoaffective disorder, should have a mastectomy to treat her breast cancer and concluded that GH lacked the relevant capacity and it was in her best interests to undergo the surgery. 
 
The question of payment of the Official Solicitor’s (OS) costs also arose - it is common practice (endorsed by the Court) for Applicant Trusts to undertake to pay 50% of the OS’s costs at the outset of medical treatment cases, which is what happened here. 
 
What was unusual was that the OS subsequently asked the Court to order the Trust to  pay 100% of her costs in the application, arguing that the delay in the Trust bringing the application was ‘unacceptable’ as the need the application was seemingly apparent in May 2023 but not made until September, 6 days before the proposed surgery – and this warranted a departure from the usual rule on costs. 
 
Whilst various reasons for this delay were given (including a change in consultant, the pressure on consultants and the ongoing industrial action), the Trust offered to pay 75% of the OS’s costs up to and including the first hearing, and 50% thereafter. 
 
Poole J decided that a departure from the general rule as to costs was justified on the facts of this case, but he ordered the Trust to pay 80% of the OS’s costs rather than 100%. 

He noted that “An order for 100% of costs might have been made if the Trust’s failings had been egregious and/or the consequences, including the costs consequences, for the OS even more serious.” 
 
This judgment serves as a useful reminder to NHS Trusts of the need to make applications promptly or run the risk of both criticism and more onerous and adverse costs orders from the court.

Cervical Cancer Treatment involving sedation

University Hospitals Southampton NHS Foundation Trust -v- Miss T & Ors [2023] EWCOP 54 (17 November 2023)

Miss T is a 60 year old woman who is much loved by her close-knit family and has a great interest in animals, a busy social life and loves Christmas. She has a moderate-severe learning disability and operates intellectually at around the level of a 5 year old. 
 
Miss T has advanced cervical cancer which she has very little understanding of, and she requires urgent treatment comprising:

• Stage 1: 5 weeks of daily radiotherapy and concurrent weekly chemotherapy; and 
• Stage 2: high dose rate brachytherapy over a 3 day period. 

The Applicant Trust described stage 2 as ‘highly invasive, painful and distressing’ with PTSD being a recognised consequence. Stage 1 cannot be commenced without certainty that stage 2 will then follow, because of the side effects, and because the risks of stage 1 are not medically justifiable without stage 2. Without undergoing stage 2, Miss T’s life expectancy would be a matter of months.
 
Recognising the distressing nature of stage 2, the Trust proposed to ventilate and sedate Miss T over the 3 day period (Stage 2, see above) and sought a declaration that this was in Miss T’s best interests. 
 
Miss T’s brother and one of her sisters were parties to the proceedings and both wished for treatment to be provided. The Official Solicitor also supported the application. 
 
John McKendrick KC, sitting as a Tier 3 Judge of the Court, considered the case on 16 November 2023 and held that Miss T lacked capacity in the relevant areas and the proposed treatment was in her best interests, including sedation and ventilation for stage 2. He concluded by thanking the clinical team for their dedication and professionalism and wishing Miss T and her family well in the weeks and months ahead.

Dental Treatment and Restraint 

Lancashire and South Cumbria NHS Foundation Trust and BNK (Dental Treatment) [2023] EWCOP 56 (7 December 2023)

Our colleague Louise Wilson represented the applicant trust in this case which involved a huge amount of preparatory work on behalf of the professionals involved to prepare BNK for this procedure to seek to ensure the minimal amount of distress would arise from providing him with necessary dental treatment, exploring all least restrictive options and developing a comprehensive care plan.

The Judge summarised the application as follows:

“This application concerns the administration of dental treatment including extraction under general anaesthesia and associated medical treatment to BNK, a 36-year-old man with a diagnosis of severe learning disability, autism and Noonan syndrome, a genetic condition that stops typical development in various parts of the body. BNK lacks capacity to consent and is expected to object, perhaps aggressively, to the treatment, which may therefore require the use of reasonable force and restraint, both physical and pharmacological. An added complication may arise in the unlikely event that there is a medical emergency requiring a blood transfusion. His parents and, according to the parents and as recorded in Trust documents, BNK are Jehovah’s Witnesses and object to blood transfusions on religious grounds, even if necessary to preserve life. In view of the potentially serious consequences of treatment the Trust very properly seeks the Court’s authorisation of its proposals.”

The Trust had identified 3 options:

1. do nothing;
2. treat, under general anaesthetic, preserving such teeth as possible, but perhaps leaving a need for further intervention in future;
3. treat, as in option 2 but with definitive full dental clearance now.

The best interests meeting had agreed that Option 2 was in BNK’s best interests, although it was also agreed that if, upon examination, it became clear that none of BNK’s teeth were restorable/functional, Option 3 (full dental clearance) should be carried out. Option 3 should also be carried out if BNK’s reaction to conveyance, admission or treatment required restraint and his response was so disproportionate and traumatic for him that the disadvantages of this option were outweighed by the benefit that no further such treatment will ever be necessary. BNK’s family were in agreement with the conclusion of the professionals.

The court held that preserving any functional teeth was preferable, but it would defer to clinical judgment on examination and allow for a full clearance if indicated. The Trust had determined it did not need to pursue an order relating to blood products as part of this application. 

Leukaemia treatment 

A Hospital NHS Foundation Trust -v- Ms KL and Another [2023] EWCOP 59 (22 December 2023)

The Trust brought an application (supported by Ms KL’s family) for declarations that Ms KL lacked capacity to make decisions about her treatment, and that the proposed treatment for her acute myeloid leukaemia was in her best interests.

Ms KL is a 45 year old woman with mild to moderate learning disabilities and EUPD, detained under s3 of the Mental Health Act (MHA) 1983 at a privately owned hospital (‘H Hospital’).

After being diagnosed with acute myeloid leukaemia she was admitted to the applicant Trust on s17 MHA leave in November 2023 for chemotherapy. Without treatment, her life expectancy would be measured in days or weeks, whereas treatment had a 60-70% prospect of success.

The question arose as to whether the Court has jurisdiction to use the Mental Capacity Act (MCA) 2005 to authorise the deprivation of liberty of a patient in an acute hospital on s17 MHA leave? 

Noting paragraph 4.51 of the MCA Code of Practice and the case of A NHS Trust -v- A [2015] EWCOP 71, the Court accepted, for a time limited period at least, that it did have such jurisdiction because the deprivation of liberty was required in connection with treatment for Ms KL’s physical disorder, therefore Ms KL was not ineligible to be deprived of her liberty under the MCA when applying Schedule 1A. 

The court concluded Ms KL lacked capacity to make the relevant decisions and authorised the proposed treatment in her best interests, including chemotherapy, a portacath under general anaesthetic, and the use of physical restraint (for IV chemotherapy only).

In determining best interests, the court placed significant weight on Ms KL’s ascertainable wishes and feelings, noting she wished to get better, did not want to die, and valued her autonomy and family.

As procedural learning points, it is worth noting the Judge’s comments in two respects:

• There appears to have been a dispute as to whether it was the responsibility of the Trust or the owner of H Hospital to bring the application, resulting in some delay. The Judge noted – “I do not propose to comment on the dispute between the applicant and the X Group, other than to observe that no public body or private institution tasked with caring for vulnerable people should compromise their charges’ welfare through a lack of cooperation.”
   
• No COP9 applications were filed when statements and other documents were filed out of time, or when additional statements were filed without permission. The Judge commented that this had obscured the court’s focus on the welfare and safety of Ms KL and led him to be concerned for Ms KL’s welfare, and so he listed a review hearing to ensure her best interests were being properly managed