A recent case shows how important it is that doctors and other professionals are supported within their organisations to understand the points at which they need to consider an application to the Court of Protection, writes the CoP team at 39 Essex Chambers.
The case of Sherwood Forest Hospitals NHS Foundation Trust & Anor v H  EWCOP 5 (Hayden J) is the latest example of delay in bringing and then resolving an application relating to medical treatment being “not only inimical but […] potentially fatal” to the person in question.
It concerns a 71-year-old woman, Mrs H, living with her daughter, Miss T. Mrs H suffered from squamous cell carcinoma ('SCC'), which had manifested on the left cheek. The recommended treatment is surgical excision which will require a general anaesthetic and free skin flap to cover the affected area.
Mrs H had first became aware that all was not well with her, in mid to late 2018. She sought the advice of her General Practitioner in October 2018 and she made a referral for treatment to the Sherwood Forest Hospitals Trust.
Mrs H had had episodes of mental ill health, including, most relevantly, that:
7. In 2014 Mrs H was admitted under the Mental Health Act, to two successive mental health units. She continued treatment under section 2 and section 3 of that Act, until 24th December 2014. It was at that stage that she was diagnosed with Bipolar Disorder and treated with olanzapine and valproate. I have been told, convincingly, that whilst she was in hospital, she effectively deceived the medical establishment into believing she was taking her medication when in fact she was not. The discharge summary in the medical records describes paranoid and persecutory feelings. It is plain that this period of detention in hospital had, in itself, a very negative effect on Mrs H and, it may in part, explain why, upon receiving her diagnosis, she refused effectively to engage with it.
8. Mrs H is described by virtually all who have encountered her but, most particularly by her daughter, as "proud and stubborn". It is obvious that she can be very combative when confronted with beliefs which do not accord with her own. It is an important feature of the case that initially, when the diagnosis was conveyed to Mrs H, she appeared to accept it; but my impression from the papers is that that was a deception, not dissimilar to her pretence that she had been taking her medication. She expressed that she would consent to surgery, she engaged with the options for reconstruction and, she expressed interest in the cosmetic result. But that was as far as it went. She did not attend the appointments made to carry out the surgery and, it seems likely that her health deteriorated. She entirely rejected the diagnosis of cancer and she expressed herself to be of the strong view that a different doctor had told her the lesion on her face would resolve with the application of cream.
Importantly, Hayden J emphasised that:
9. […]. It does not, to my mind, follow automatically that having articulated an alternative diagnosis, which could not in fact be rooted in the evidence and, in refusing to contemplate cancer, one can extrapolate from that that she lacked the capacity to weigh up and evaluate the options. As Mr Pollock, the consultant plastic surgeon who gave evidence before me, observed, people react to such diagnoses in a wide variety of ways.
In May 2019, Mrs H was assessed as lacking the capacity to make decisions in relation to her medical treatment, but it was not until 20th December 2019 that an application was made to this Court actively to address her carcinoma. As Hayden J noted:
10. I do not doubt that all those involved in her care have been concerned to do the right thing for her, but it requires to be confronted that the delay in this case may mean that a life is lost that could well have been saved. That is quite simply a tragedy. It is also profoundly troubling.
13. One of the reasons that treatment was not progressed more effectively was that the treating clinicians were perplexed as to whether it was appropriate and if so in what circumstances for Mrs H effectively to be forced, physically and by coercion if necessary, to attend for her treatment and, if so, how that might be achieved. The reality, in my assessment of the chronology, is that this issue had been identified very clearly by April or, at the latest, May of 2019, and certainly following the capacity assessment on 30th May 2019. I have now, in a number of judgments, emphasised that whilst avoidance of delay is not incorporated into the framework of the Mental Capacity Act in specific terms, it is to be read into that Act as a facet of Article 6 and Article 8. It is self-evident and, indeed, striking, that time here was of the essence and delay was likely to be inimical to Mrs H's welfare.
32. The Mental Capacity Act creates what can both conveniently and accurately be described as a presumption of capacity and, where it is absent, imposes upon those best placed to do so, an obligation to deploy all reasonable options available to them in order to promote a return to capacity. A reasonable period before making an application might have been a week, two weeks, three weeks, but it was certainly not 6 months.
The position was then compounded by the fact that that there was a delay of almost a month until it could be heard by the court, as it was filed at the end of the court term – during that period, the growth on Mrs H’s cheek grew dramatically. In the circumstances, Hayden J encouraged reflection on behalf of the Official Solicitor as to how her appointment could be expedited in such cases; he also read into the judgment (so it now forms part of the case-law), the guidance he had issued on 17 January on medical treatment applications. He reiterated (at paragraphs 16 and 17 of this judgment) the core points, namely that
16. […] is important, firstly to consider whether steps can be taken to resolve, if possible, the relevant issues without the need for proceedings but thereafter it has to be recognised that delay will invariably be inconsistent with P's welfare and, if resolution cannot be achieved, having particular regard to P's own timescales, then proceedings should be issued.
17. If, at the conclusion of the decision making process, there remain concerns that the way forward is finely balanced, or if there is a difference of medical opinion, or a lack of agreement, or a potential complication of some kind, or if there is opposition, then it is highly probable, in those circumstances, that an application to the Court of Protection is appropriate and it is important that consideration must (I emphasise) always be given to whether an application to the Court of Protection is required.
On the facts of the case, Hayden J found, with the assistance of Miss T’s:
12. […] simple and unembroidered account of how her mother talks to herself and "hears voices", as Miss T puts it, she was able to help me unify the capacity assessments with her direct lay observations and arrive, with very little difficulty, at the conclusion that this is a woman who is simply unable to absorb and accept the diagnosis she has been given. T tells me that her mother's rambling monologues, throughout the night, are frequently a verbalisation of her emotional struggle to accept the diagnosis. In my judgment, it follows from all this that Mrs H is unable to weigh and evaluate the treatment options. That includes not only the potential for curative treatment but the palliative options too.
As to her best interests, there were a number of options, of which the only viable one was surgical excision, even that not necessarily being viable. Hayden J noted that:
22. […] Mrs H has been sent an appointment card telling her to attend for treatment in a few days' time. She has not, for the reasons I have referred to, taken on board the scope and ambit of the diagnosis, but what is clear is that she finds this awful growth unsightly and, I sense, rather demeaning. She is also tired, which her daughter told me is often a precursor to deterioration of her mental health more generally. The growth has now very significantly, for all the reasons I set out, impacted on Mrs H's quality of life, which is desperately diminished. This combination of her tiredness, the unsightliness of her growth and the trust she has been able to place in Mr Pollock, has enabled a shift in her position. She now welcomes the treatment. That is not to say that she understands it, she is now prepared to engage with it, to remove the discomfort. It reflects her aspiration to be more comfortable. Sadly, it has to be recognised, as Mr Pollock did, that there is a real risk that intervention at this stage may now be too late.
Having explained the key role of Mr Pollock, who had played an important role in drawing up the plan for her treatment with her daughter, Hayden J noted that:
35. […] whilst it was initially contemplated that Mrs H should be sedated and physically coerced into treatment, her acquiescence to the treatment is now likely to make that unnecessary. I emphasise that sedation remains the Trusts' fall-back position. It also requires to be highlighted that whilst Mrs H is physically acquiescent, she is not agreeing in any capacitous way. And so, her daughter and Mr Pollock have devised a plan, which is now reflected in the Care Plan, which is, in my judgement, both unusual as well as intensely sensitive.
36. When I first read the papers, I was concerned that Mrs H might be inveigled into serious treatment that she did not understand, in circumstances where there is no longer any plan to try and explain it to her. But as I have been able, through counsels' assistance, to drill down more deeply into the evidence, I have accepted that this is the appropriate and kindly way forward and one that respects, in different ways, Mrs H's dignity, her autonomy and the very grave circumstances that she finds herself in. The plan, I have concluded, is in Mrs H's best interests.
37. It is, and it requires to be recognised as, a different and more subtle form of coercion, but it is also, in my judgement, both proportionate and justified. I am particularly confident in endorsing it having heard the evidence of those who will be involved.
Deciding the point at which the Court of Protection should be involved is an exercise which is depressingly easy to identify in retrospect. In this case, it is unclear whether and when the team looking after Mrs H first thought that they might need to get the assistance of the court, but this case illustrates dramatically how important it is that doctors and other professionals are supported within their organisations to understand the points at which they need to consider an application (and, in turn, are then supported to bring that application).
On one view, of course, had Mr Pollock become involved in Mrs H’s case at a much earlier stage than at the end of 2019, it might have been possible for the situation to have been resolved without the need for the involvement of the court, on the basis that those responsible for her could proceed on the basis of ss.5 (and 6, given the potential for restraint) MCA 2005. However, even with his earlier involvement, and with the support that he gave, Hayden J was no doubt right to consider that the (subtle) coercion that was to be exercised, together with the contingency planning for sedation, required approval by the court in any event.
This article was written by the Court of Protection team at 39 Essex Chambers.