Public Law Newsletter: Jan 2024
GH (Mastectomy: Best Interests: Costs), Re  EWCOP 50
GH, a 52-year-old woman diagnosed with schizoaffective disorder, was diagnosed with breast cancer in March 2023. However, GH denied having cancer and rejected any proposed treatment. The Trust overseeing her cancer care sought declarations and orders from the Court of Protection, arguing that GH lacks the capacity to make decisions regarding her treatment and that it is in her best interests to undergo a comprehensive treatment plan, including sedation, anaesthesia, right mastectomy, and axillary node clearance.
The first question in this case revolved around GH’s mental capacity to decide on her treatment.
Then, on terms of best interests, under MCA 2005 s1(5), any action or decision executed on behalf of an individual lacking capacity must be carried out with a primary focus on their best interests. Section 4 MCA 2005 set out the principles to be considered when assessing the best interests of the individual who lacks capacity to make the decision at hand.
GH had not established an advance decision or appointed an attorney. As per sections 16 and 17 of MCA 2005, the court may make decisions regarding P’s personal welfare, including consent to or refusal of treatment. This exercise of authority is bound by the principles articulated in sections 1 and 4 of MCA 2005, ensuring alignment with the determination of P’s best interests. Decision-makers are additionally directed to take into account the Mental Capacity Act 2005 Code of Practice, as mandated by MCA 2005 s42.
Consideration of serious medical treatment for an individual who lacks capacity must also factor in P’s Convention rights under Articles 2, 3, and 8 of the European Convention on Human Rights.
The court also considered the case of Aintree University Hospital NHS Foundation Trust v James  UKSC 67, where Baroness Hale emphasised the focus on whether providing treatment aligns with the patient’s best interests. The court must assess the broader welfare aspects, encompassing medical, social, and psychological considerations. This evaluation involves understanding the nature of the medical treatment, its implications, and prospects of success. P’s likely attitude towards the treatment, placing oneself in P’s position, and consulting relevant caregivers or those concerned with P’s welfare are also integral to the decision-making process.
Moreover, in R (Burke) v GMC (OS Intervening)  QB 424, Munby J emphasised a strong presumption in favour of sustaining life. Unless there are exceptional circumstances, taking steps to prolong life is deemed in P’s best interest. The burden of proof rests on the party advocating the withdrawal or withholding of life-sustaining treatment, subject to the civil standard of proof on the balance of probabilities.
The court acknowledged the need to decide on GH’s capacity to make decisions about her cancer treatment.
Dr. Aziz, in conjunction with breast surgeon Mr. Mirza, provided crucial medical evidence establishing GH’s lack of capacity to make informed decisions about her cancer treatment. GH’s ongoing psychosis, refusal of treatment, and delusional beliefs, including suspicions of a cover-up and involvement of “black magic,” contributed to the court’s conclusion regarding her lack of capacity. The court reviewed Dr. Aziz’s psychiatric assessments conducted in late June and September 2023, supported by the evidence that GH’s ability to make decisions has remained consistent. The court addresses the discrepancy between professionals’ earlier impression of GH’s capacity in March to May 2023 and the subsequent assessments leading to the Court of Protection application.
GH’s delusional beliefs, driven by her schizoaffective disorder, were identified as the key factor meaning she lacks capacity to understand, weigh, and use the relevant information to make decisions about treatment for her breast cancer. The court explored the possibility that GH may understand her cancer diagnosis but concluded that her delusional beliefs prevent her from having capacity to make decisions based on this understanding.
The court reviewed evidence from Mr. Mirza regarding GH’s breast cancer diagnosis and recommended treatment, taking into account her refusal, interactions, and the complexities of the proposed surgery.
Considering GH’s Convention rights, the court balanced the presumption in favour of life-prolonging measures and placed the burden of proof on those advocating for withholding or withdrawing treatment. The views of GH’s family aligned with the Trust’s proposals. The court weighs the physical and mental health consequences, family input, and the delicate balance between respecting GH’s autonomy and ensuring her well-being.
Despite GH’s autonomy, the judgment acknowledged the need to override her wishes due to a lack of capacity, aiming to protect her from harm. Ultimately, the court concludes that the proposed surgery is in GH’s best interests, balancing the preservation of life, improvement in quality of life, and the mitigation of potential harm. The court recognised the difficult choices involved but emphasised the necessity of prioritising GH’s well-being.
After the judgment, the court was informed that the mastectomy was performed early in the week following the hearing on 28 September and GH was compliant, such that no restraint was needed. GH recovered well from the operation and there were no signs of any adverse impact on her mental health.
The court also considered costs in this case due to serious concerns about the delay in bringing the Court of Protection application. As a result, the Official Solicitor sought a cost order requiring the Trust to pay 100% of her costs.
The court agreed with the OS’s concerns about the delay in making the Court of Protection application and the subsequent need for an inquiry into the Trust’s handling of the case. The court noted discussions dating back to May 2023 about the potential need for a Court of Protection application and expressed concern over the delayed initiation of proceedings, almost seven months post-diagnosis.
The court considered the law on costs and section 55 of the MCA which grants the court discretion over costs. Court of Protection Rules (COPR) 2017 r19.3 establishes the general rule of no order on costs in personal welfare proceedings. However, COPR r19.5 allows departure from this rule based on various factors, including the conduct of parties. CPR Part 44 provides the court broad discretion in making costs orders. COPR r19.9 addresses the Official Solicitor’s costs in Court of Protection proceedings.
The court concluded that the Trust’s delay in filing the application was unjustified, undermined the OS’s role, created pressures, and risked open justice. The court invoked COPR r19.5, justifying a departure from the general rule due to the Trust’s conduct
The Trust had agreed to pay 50% of the OS’s costs. However, considering the serious consequences of the delay, the court determined that there should be a departure from the 50% convention and ordered the Trust to pay 80% of the OS’s costs, emphasizing the court’s broad discretion in assessing costs. The court acknowledges that 100% might be warranted in egregious cases, but 80% in this case adequately reflects the Trust’s failings and the OS’s costs incurred due to the delay.
Manchester University NHS Foundation Trust v Y (By his litigation friend, the Official Solicitor)  EWCOP 51
This case revolves around Mr. Y, a 42-year-old man diagnosed with Paranoid Schizophrenia. Mr Y sustained multiple injuries and suffered a seizure which resulted in his admission to intensive care. Mr Y did not think surgery was necessary. He was subsequently detained under the Mental Health Act 1983.
The primary issues for the court were whether Mr. Y had capacity to decide on the proposed surgery for his fractured and dislocated left shoulder and, if he lacked capacity, whether the surgery was in his best interests. The applicant sought orders proposing an open reduction and internal fixation of the shoulder fracture, along with ancillary treatments, and the potential use of chemical or physical restraint if deemed necessary
The court considered sections 1-4 of the MCA 2005 which evaluate whether an individual has the capacity to make relevant decisions and, if lacking, the subsequent determination of actions in their best interests. Moreover, the Practice Guidance on Serious Medical Treatment, issued by Hayden J in January 2020, underscores the necessity for court intervention in situations involving serious infringements on an individual’s rights or the application of force that might result in a deprivation of liberty.
The court also considered capacity principles elucidated by MacDonald J in light of the Supreme Court decision in A Local Authority v JB  UKSC52. Notably, the determination of capacity involves identifying the specific matter under consideration, comprehending the relevant information, and assessing whether any lack of capacity stems from an impairment or disturbance in the functioning of the mind or brain.
Recent legal decisions, including the Supreme Court judgment in A Local Authority v JB and the decision of Roberts J in A NHS Trust v ST And Others  EWCOP 40, were also considered. The court emphasised the best interests test, guided by Sections 1 and 4 of the 2005 Act and informed by the dicta of Lady Hale in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67. The court’s role is to ascertain whether a specific treatment aligns with the best interests of someone who lacks capacity to make the decision independently, taking into account medical, social, and psychological considerations.
Finally, any decision rendered by the court must conform to the rights stipulated in Schedule 1 to the Human Rights Act 1998. The best interests test is designed to accommodate an assessment of the patient’s rights, ensuring a comprehensive and rights-respecting approach in the adjudication of serious medical treatment matters
Medical professionals presented evidence to the court supporting the urgency and medical necessity of a proposed surgery for Mr. Y. Dr. F argued that Mr. Y’s delusional beliefs impaired his capacity to understand and decide on the surgery. The risks and benefits of the surgery, including potential complications, were outlined by various medical experts. Dr. W, a consultant anaesthetist, discussed anaesthesia options, considering Mr. Y’s cooperation or resistance. Ms. B, a ward manager, presented a care plan emphasizing careful management. Ms. Hayley Jade Buchan, a solicitor, relayed Mr. Y’s expressed desire to discuss the surgery with his brother.
The court heard arguments from the applicant and second respondent Trusts, asserting that Mr. Y lacks the capacity for legal proceedings and surgery consent. The Official Solicitor, represented by Mr. McCormack, agreed on Mr. Y’s incapacity and supported the surgery’s authorisation, considering its potential impact on Mr. Y’s well-being.
The court considered Mr. Y’s capacity for litigation, consent to surgery, the surgery’s best interests, and the role of restraint and declared that Mr. Y lacked capacity in these regards.
The court further determined that surgery was overwhelmingly in Mr. Y’s best interests, considering medical factors, pain relief, impact on arm function, familial support, and Mr. Y’s expressed wishes.
Regarding restraint, the court approved a care plan allowing up to four security team members to use force for sedation, respecting Mr. Y’s preference for familiar security staff. Restraint was authorized as a last resort, in accordance with the Mental Capacity Act 2005 and the Code of Practice, to uphold Mr. Y’s dignity.
University Hospitals Southampton NHS Foundation Trust v T & Ors  EWCOP 54
Miss T, born in December 1962, has been diagnosed with advanced cervical carcinoma and a CT scan had recently confirmed her tumour was 7.5 cm wide. The urgency of her situation arose from the need for two stages of treatment: first, a five-week course involving daily external beam radiotherapy and concurrent weekly cisplatin chemotherapy; second, high-dose rate brachytherapy delivered over a three-day period, described as highly invasive. The applicant, the Trust, filed an application under the Mental Capacity Act 2005, seeking declarations that Miss T lacks the capacity to make decisions and consent to her cancer treatment, and that the proposed treatment is in her best interests.
Miss T has a lifelong diagnosis of moderate-severe learning disability and operates intellectually at around the five-year level. After a capacity assessment, it was concluded that she lacks the capacity to make decisions about her cancer treatment. A best interests meeting supported the proposed treatment plan, emphasizing the urgency due to potential delays and the impact on cure rates.
The evidence presented included a witness statement from Mr. BT (Miss T’s brother), supporting the proposed treatment. Dr. M, a consultant clinical oncologist, provided oncological and capacity evidence, emphasising the urgency and necessity of the proposed treatments. Professor Hoskin, jointly instructed by the applicant and the Official Solicitor, supported the proposed brachytherapy plan under continuous sedation.
The anaesthesia and intensive care plan were presented by Dr. K, a consultant in anaesthesia and intensive care medicine. Dr. Bell, a consultant in Intensive Care/Anaesthesia, supported the proposed care plan, highlighting manageable risks. Nurses AB and SA, employed by the applicant, agreed with Miss T’s lack of capacity and gave evidence of detailed practical and clinical issues.
Ms. Emily Steel, a solicitor instructed by the Official Solicitor, provided an attendance note after meeting with Miss T and her sisters. Miss T showed no recollection of recent hospital visits and expressed discomfort with hospital settings
Serious medical treatment applications follow Practice Guidance (Court of Protection: Serious Medical Treatment)  EWCOP2, indicating that court authorisation may be necessary for cases involving significant interference with a person’s rights under the Human Rights Convention or where proposed procedures may result in deprivation of liberty beyond statutory limits.
Regarding capacity, MacDonald J elucidated principles based on the Supreme Court decision in A Local Authority v JB  UKSC 52;  AC 1322. The court must identify the specific matter for which capacity is in question, determine relevant information under section 3(1) of the 2005 Act, and assess whether the person lacks capacity due to a mental or brain impairment.
In the context of best interests, proceedings related to serious medical treatment are governed by sections 1 and 4 of the 2005 Act and follow Lady Hale’s guidance in Aintree University Hospitals NHS Foundation Trust v James  UKSC 67;  A.C. 591. The court’s role is to decide if a treatment is in the patient’s best interests, with a focus on the broader welfare, including medical, social, and psychological aspects.
The court also considered the decision in Norfolk and Norwich University Hospitals NHS Foundation Trust v Jordan Tooke  EWCOP 45, emphasizing considerations related to a proposed sedation plan and the need to weigh risks against alternatives.
Lastly, any decision by the court must conform to rights outlined in Schedule 1 to the Human Rights Act 1998, and the best interests test should accommodate an assessment of P’s rights.
All parties agreed that Miss T lacks capacity to decide on her medical treatment, specifically, the proposed brachytherapy for cervical carcinoma, including ventilation and sedation. The court, considering the time and issue-specific nature of capacity assessments, agreed that she lacks capacity for the proposed treatment due to her cognitive challenges, which are deemed impairments or disturbances of the mind or brain.
The court then considered best interests, recognising the gravity of the decision. With no effective alternatives, the options are the proposed treatment or palliation. The court emphasised the presumption in favour of sustaining life but noted the need to consider P’s specific circumstances.
The court considered that Miss T’s wishes are unclear due to her limited understanding of her diagnosis. The court considered her family life as a significant factor, valuing her close, caring family. Balancing Section 4(6) factors, the court gave weight to the family’s views, the clinical evidence, and the potential benefits of the treatment in determining that the proposed treatment is in Miss T’s best interests, despite the significant interference with her Article 8 ECHR rights.
The court, after considering the evidence, concluded that Miss T lacks capacity in relevant areas and that the proposed treatment is in her best interests. The authorization for ventilation and sedation during brachytherapy was deemed necessary to ensure effective and safe treatment. The urgency of treatment was emphasised. The court also considered the question of deprivation of liberty but deferred that decision due to the urgency of the judgment and stated that this can be covered by standard or urgent authorisation of deprivation of liberty.