An NHS Trust v J [2014] EWCOP 2675

Neutral Citation Number: [2014] EWCOP 2675

Case No 1252587

IN THE HIGH COURT OF JUSTICE

COURT OF PROTECTION

Venue LEEDS DISTRICT REGISTRY

Coverdale House

13-15 East Parade

Venue Leeds

Date Thursday, 24 th July 2014

LS1 2BH

Before

THE HONOURABLE MR JUSTICE BODEY

Between

AN NHS TRUSTApplicant

-v-

Between

MRS JRespondent

By her Litigation Friend The Official SolicitorRespondent

Transcribed from the Official Tape Recording by

Apple Transcription Limited

Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES

DX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838

Counsel for Applicant: MR FULLWOOD

Counsel for Respondent: MR HALLIN

JUDGMENT

MR JUSTICE BODEY

This Judgment was delivered in private. Permission is given to report it in this anonymised form, but nothing is to be reported nor disclosed which may disclose the identity of Mrs J, or her family, or where she lives. Any breach of these requirements would be a contempt of Court.

[1]This application concerns an elderly lady of 79 years whom I shall call “Mrs J”. She has longstanding mental health problems and now also cancer. Many professionals concerned for her welfare have with much care and diligence come to the view that it is in her best interests for her to have investigations and to receive treatment; but she is resistant and, in spite of all professional efforts and advice, not willing to consent. Accordingly, on 3rd July 2014, the relevant NHS Trust issued a notice of application in the Court of Protection seeking declarations:(1) that Mrs J lacks capacity to litigate in these proceedings;

(2) that she lacks capacity to take decisions about the proposed medical investigations and treatment; and

(3) that it is in her best interests to have those investigations and treatment.

[2]The application came before Holman J on 11th July 2014 when, having been informed that the Official Solicitor had consented to act as Mrs J’s Litigation Friend, he gave the Official Solicitor permission to instruct an independent consultant psychiatrist. He set the application down before me with a time estimate of two hours this week. He further gave permission to Mrs J’s son, whom I shall call “Mr J” and who is in his 50s, and to her two adult daughters, to file Position Statements prior to the hearing. He (Holman J) invited them quite strongly to attend at this hearing whether or not they had filed such Position Statements.

[3]The representation before me has been by Mr Fullwood of Counsel for the NHS Trust concerned and Mr Hallin of Counsel for the Official Solicitor representing Mrs J. Mr J has not attended, although he has given his views on a number of occasions, including to the Official Solicitor’s representative on 16th July 2014, of which there is an attendance note, and in an email of 17th July 2014. I have also read a letter by him dated 15th April 2014 to Dr Stephenson (Consultant Plastic Surgeon Reconstructive and Burns Surgeon) setting out his views. On 21st July 2014 he (Mr J) left a voice message with the Official Solicitor’s representative to say that he would not be attending at this hearing. Neither of Mrs J’s adult daughters has attended the hearing, although it is not clear whether they have been notified of it, since Mr J told the Official Solicitor’s representative on 16th July 2014 that they are totally estranged from Mrs J and that he was, therefore, reluctant to pass on their contact details.

[4]As regards the approach under the Mental Capacity Act 2005, all of sections 1 to 4 and sections 15 and 16 are relevant. I have refreshed my memory as to their terms and there is no advantage in reciting them slavishly here. In particular though, by section 1(iv) of the Act, ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’ and by section 1(v), ‘An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’.

(c) :

‘A person is unable to make a decision for himself if he is unable... (c) to use or weigh that information as part of the process of making the decision.’

By section 4(3), a person determining another person’s best interests must consider ‘whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that he will, when that is likely to be’. By section 4(6), such a person making a determination on behalf of another person must consider:

‘... so far as is reasonably ascertainable (a) the person’s past and present wishes and feelings... (b) the beliefs and values that would be likely to influence his decision if he had capacity; and (c) the other factors that he would be likely to consider if he were able to do so.’

By section 15(1):

‘The court may make declarations as to- (a) whether a person has or lacks capacity to make a decision specified in the declaration and... (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to the person.’

By section 16(2)(a):

‘The court may- (a) by making an order, make the decision or decisions on the Patient’s behalf in relation to the matter or matters...’

[5]For a very long time, Mrs J has had a diagnosis of schizophrenia with persecutory delusions. She is an independent lady who now lives alone and, although she is frail, she is clearly determined to preserve her own autonomy. She has a history of refusing treatments and of non-cooperation with professionals trying to do their best for her. Currently, she is being looked after in a Care Home where she has been since 4th June 2014 following a fall at her own home. Prior to that, she had been detained under the Mental Health Act 1983 from 31st December 2013 to 20th March 2014. Currently, there is in place with respect to her a Standard Authorisation for Deprivation of Liberty under Schedule A1 of the Mental Capacity Act 2005, expiring on 17th October 2014.

[6]As I have said, Mrs J strongly opposes any treatment for her current condition. That condition in more detail is currently as follows:(a) she has ulcers to both legs, the lower right leg involving diagnosed cancerous cells, with a probability that the lower left leg does too;

(b) she has enlarged lymph-nodes in the right groin; and.

[7]Dealing now with Mrs J’s capacity to litigate and/or to decide about medical investigation and treatment, these are, of course, quite separate and distinct issues. However, in the circumstances of this particular case, having considered them separately, I propose to deal with them together because I consider that they do stand and fall together. Consultant psychiatrist Dr Whittingham has been responsible for Mrs J’s mental health for many years. On 28th May 2014, he prepared an Assessment of Capacity for the Court of Protection. At paragraph 7.1, he stated:

“Mrs J suffers from mental disorder in the form of schizophrenia. This was diagnosed in 1985 and she has been under the care of mental health services continuously since 2005. The nature of the disorder is that of a chronic psychotic condition characterised by persecutory delusions, which achieves only partial remission on treatment. Treatment concordance is always poor outside of hospital, but she is able to manage her life in the community in spite of this over long periods of time. The degree of disorder is that Mrs J is deluded that people who care about her conspire against her. She believes that she is lied to about having skin cancer. She refuses medical treatment as a result of her delusions of being lied to about the medical facts. She is currently medically stable and safely mobile, but reluctant as to basic care for her leg ulcers and nocturnal urinary incontinence.”

[8]In reaching his decision at paragraph 7.2 that Mrs J is unable to make a decision in relation to the matters in hand, Dr Whittingham stated that:

“She is unable to use and weigh the necessary relevant information: namely, that she has skin cancer which may have spread to the lymph-nodes in the groin; that she would benefit from skin grafting so as to avoid an open ulcer on her leg which is otherwise liable to infection; and that she needs dressings to maintain the ulcer until skin grafting can take place.”

[9]On the important question as to whether there is a prospect that Mrs J might regain or reacquire capacity in the future, Mr Whittingham gave his opinion in the negative. He says:

“It is unlikely that Mrs Y would demonstrate a response to antipsychotic medication which result in her accepting the advice given regarding her legs and skin cancer. She has characteristically formed her own beliefs about health matters in the past and, even when taking antipsychotic drugs during a previous admission seven years ago, she did not gain insight into her condition... Antipsychotic drugs could only be given at present by injections against her will and it is unlikely that she would accept such treatment in the community after discharge. Even if it were accepted, it would be likely to be many months before any remission of her delusions, particularly given the chronic nature of her condition.”

[10]Mrs J’s general practitioner of many years standing, Dr Goodwin, agrees with Dr Whittingham that the mother lacks capacity to take the sort of decisions with which this court is concerned on this application. In a letter dated 17th June 2014, a community psychiatrist nurse, Tim Wheeler, summarised some of the things which Mrs J has said to him, showing the delusional nature of her views as relied on by Dr Whittingham in reaching his opinion. Mr Wheeler refers to Mrs J saying of cancer, ‘I don’t believe I’ve got it’; ‘You are ganging up on me’; ‘Mr J is behind this’; ‘I’m not letting people experiment on me’; ‘I’m sick of the sight of hospitals’; ‘There is nothing wrong with me’; and ‘There is no mass in my groin’. Further, Mrs J informed Mr Wheeler that the suggestion her pet dog had died was a lie and she made it clear to him that she believed that the attempt to investigate and treat her was part of a plot orchestrated by Mr J so that he could live off her pension.

[11]Pursuant to the order of Holman J, the Official Solicitor instructed consultant psychiatrist Dr Branton, who reported with commendable speed and thoroughness on 21st July 2014. He too set out a number of Mrs J’s delusions as reported in documents, for example that there were people in her attic, that people had keys to her house and could enter it when she was out, that there were tape recorders in her house and that she was able to treat her leg ulcers with antiseptic cream.

[12]Dr Branton interviewed Mrs J, finding her to be a mildly dishevelled lady who looked her years. Her speech was coherent and normal in tone and rhythm with no evidence of word finding impairments or word substitutions. She was without apparent comprehension difficulties. He continues:

“She had a range of bizarre beliefs which she expressed without inhibition. She told me there was somebody in her attic because she can hear them banging around. She said she believed there was a cannabis farm in the attic and that her neighbour was stealing her electricity in order to propagate the cannabis. She told me there were tape recorders installed in her house and that Mr J was in collusion with Dr Whittingham who was responsible for getting her ‘sectioned’ and getting her seen regarding her leg.”

[13]Dr Branton found no subjective or objective mood abnormality and there was no evidence of abnormal perceptions in any modality. When he discussed with Mrs J the professionals’ concerns about the lumps in her groin and pelvis, she did not acknowledge the existence of them. He says:

“It was clear that she did not recognise any authority in the court and saw the right to make your own decisions as overriding any authority from anyone else.”

[14]Dr Branton stated his diagnostic formulation as being that Mrs J had had ‘early experiences which have made her value independence and mistrust authority figures. However, for many decades, her patterns of thinking and interacting have been pathological and destructive... The greatest burden of her psychopathology has been borne by her family who are now mostly estranged from her. The impact of her condition on her health has been limited until recently with the development of Basal Cell Carcinoma, its associated investigations and a general decline in her physical health requiring action from professionals.’

[15]On the question of recovery of capacity, Dr Branton said this:

“I believe, given the chronic nature of her condition and the intractable nature of her delusions and taking into consideration the time (possibly up to more than six months of continuous treatment) that it would take to assess recovery of capacity, the urgency of the treatment appears to outweigh this consideration... I do not think there is anything that can be done to enhance Mrs J’s decision-making at this stage and in the context of my discussions regarding antipsychotic treatment above.”

[16]In overall summary of his conclusions, Dr Branton gives his opinion that:

“(a) Mrs J suffers from delusional disorder, a schizophrenia related psychosis which is a mental disorder. (b) Mrs J lacks capacity to litigate and to make decisions about medical treatment. (c) Mrs J might recover capacity to make decisions if she were vigorously treated with antipsychotic medication. However, the likelihood of response to treatment is poor and she is unlikely to respond to treatment in a timeframe compatible with effective medical treatment. And: (d) I believe it is in the best interests of Mrs J’s mental health to receive the proposed medical treatment. (e) I recommend that the number of admissions, tests and procedures is kept to a minimum. (f) I recommend that Mrs J and the surgical team are given support and advice from mental health specialists during any treatment ordered by the court.”

[17]The Mental Capacity Act Code and approach generally requires the court to take account of the views of an incapacitated person’s near and dear. Mr J’s views have been cogently expressed in the documents to which I have referred and can be summarised briefly as follows:(a) that it is in Mrs J’s best interests to have the surgery, but that people should have the right to refuse treatment;

(b) that Mrs J should be given the best opportunity to make a decision by way of further treatment of her mental health condition;

(d) that there must be question marks over the chances of Mrs J making a full recovery from surgery given her age and state of health;

(e) that Mrs J has lost confidence in the medical system;

(f) that Mrs J would be very likely to be resistant to treatment; and

(g) that since Mrs J has few friends and family, because of the way she is to people, she would have very little support in the necessary recovery period following any surgery.

[18]There are almost always ‘pros’ and ‘cons’ of any significant medical investigations or treatment. A capacitated person weighs them up in consultation with his medical advisors and takes a decision. Here, the court has to do the balancing exercise and take the decision on Mrs J’s behalf, it being clear, as I find, that she lacks capacity both to litigate and to take the decisions for herself about this medical treatment and these investigations.

[19]The advantages of not treating Mrs J are that she would be having her expressed and strongly held wishes and beliefs complied with. She would not have to undergo the physical pain and potentially considerable emotional stress of treatment which she herself does not see the need for, nor understand the need for, nor perceive the anticipated advantages of. She would not be placed at the inevitable risk which a person at any age (but particularly at a considerable age) faces of an adverse reaction to surgery; nor would she have to face the demands on her resources of a period of recovery which could be painful and uncomfortable. She would not have to deal with the difficulty of managing skin grafts which would have been taken against her will. Nor would she have to put up with the likelihood of some diminution of mobility and movement together with discomfort which, if it occurs, would probably be permanent.

[20]On the other side of the balance, the advantages of treatment are that she would have the best chance of regaining the maximum independence possible (it being her ‘most fervent wish’ to go home). She would not have to undergo the real risk of the cancer and ulcers spreading. In that respect, Dr Stephenson says:

“Without treatment, the right leg ulcer will increase in size and may interfere with the blood vessel and/or nerves causing wound leakage, bleeding and possibly significant pain to Mrs J. [There would be] persistence of the ulcer risks infection, which has occurred previously. Leaving the groin mass (the enlarged inguinal lymph-node which can be felt) untreated means that the mass will increase in size and may ulcerate overlying skin. There is a risk that an enlarged groin mass may obstruct the blood flow in the groin and/or compress local nerves. There is also a risk of tumour invading the nerves, although I am unable to quantify the chance of this occurring. Invasion of nerves would be likely to cause Mrs J considerable pain, which would be likely to be difficult to manage. If cancer has spread into the pelvis, this may invade or compress the nerves in the pelvis. I am unable to quantify the chance of this occurring. Compression of nerves and invasion of nerves would be likely to cause Mrs J considerable pain, which would be likely to be difficult to manage and may not be controllable. Once the cancer has spread beyond the pelvis, curative opportunity will be lost.”

[21]It is also worth repeating at this point the conclusion of a Best Interest Meeting which took place on 19th March 2014 attended by: Mr Stephenson; Dr Goodwin, GP; Dr Whittingham, consultant psychiatrist; Mr Fores, community psychiatric nurse; Miss Powell, clinical nurse specialist in dermatology; Miss Hotton of the Safeguarding Department of the NHS Trust; and two solicitors instructed by the Trust. The unanimous recording of the medical experts at that meeting (which Mr J and his two sisters did not attend) was that there were concerns about the family members having reached their views (against treatment) without having had the benefit of medical advice on the likely outcome in the absence of treatment. The note continues:

“The likely outcome [without treatment] is significant pain, high infection risk, possible metastasis of the cancer and a painful death.”

The meeting, therefore, caused the minutes to be sent to Mrs J’s family members with a request that they read them carefully and indicate their views as a consequence. I have already set out the views of Mr J above and record that there has been nothing back from Mrs J’s daughters.

[22]This review of the evidence and the carrying out of the necessary balancing exercise makes it clear that to compel Mrs J to have the recommended investigations and treatment as being in her own interests has many contraindications. I recognise that there are significant difficulties and risks. However, the experienced professionals have unanimously come down in favour of going ahead with investigations and surgical intervention as being in Mrs J’s best interests. They have done so having carefully and conscientiously weighed up the advantages and disadvantages and being very alive to the risks and likely problems. That is clear from the documents I have read. In their conclusion, they are now supported by the Official Solicitor, whose role and experience is to protect the interests of vulnerable individuals.

[23]Mr J himself has said that he believes Mrs J should have the treatment, but that he feels conflicted because he considers that individuals should have their own right to decide. That right to decide for oneself is, of course, generally sacrosanct and is recognised in the Mental Capacity Act; but it ceases to be applicable where the individual, as here, cannot weigh up the decision for herself, although the individual’s wishes and feelings are still of course taken fully into account.

[24]Taking all aspects of the case into account and weighing them up, I have come to the conclusion that Mrs J’s best interests would be served by the proposed investigations and treatment. I shall make declarations accordingly, as already discussed with Counsel, detailing the necessary treatment and other consequential arrangements.