The limits of paternalism

Re DM [2014] EWHC 3119 (Fam) is an important case about the limits of the inherent jurisdiction.

Sunderland City Council sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult which contemplated: (i) interference with the mother/baby relationship following the birth which involved some unspecified level of forced separation and, potentially, removal of the child; and (ii) that the mother should not be informed of key aspects of the plan.

The above orders were sought under the Human Rights Act 1998 and the inherent jurisdiction of the High Court.

The application was made on a Friday. Hayden J adjourned it over the weekend because he did not consider that the evidence had been fully marshalled. On Monday, the local authority sought permission to withdraw its application. Hayden J granted permission to withdraw ‘without hesitation’ because he was far from persuaded of the necessity for or proportionality of the relief sought.

The expert evidence was that the mother had capacity to make decisions about (i) the contact she had with professionals (ii) the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction and (iii) to make decisions about the treatment she should receive following the birth of the baby.

The young woman had given birth on eight previous occasions and each of those children had been removed from her care and placed for adoption. The mother had also gone into hiding late in her last pregnancy. Relevant clinicians had come to the conclusion in this pregnancy that labour should be induced for the mother’s own health. The local authority was understandably concerned that the mother might go into hiding again jeopardising her own health, that of the unborn child and that of the child following birth. The local authority sought to protect the mother and to put in place such protective measures as they could on the birth of the child. Hayden J described the instincts of the local authority as ‘laudable’ but with a ‘paternalistic complexion’. He emphasised that the law was vigorous in protecting the fundamental principle of personal autonomy. He noted that individuals are entitled to take their own decisions, both good and bad and are at liberty to make their own mistakes.

The starting point was that the local authority had an obligation to consult parents in the care planning for their children and/or unborn child.

Hayden J reiterated that in UK law a foetus has no rights of its own until it is born and has a separate existence from its mother. It was a principle that infused the whole of the criminal and civil law in the UK. Balcombe LJ in Re F (in Utero) (Wardship) [1988] 2 FLR 307 had confirmed that the inherent jurisdiction did not extend to the unborn child.

The issue in this case was therefore the future rights of a child, crystallising on birth and the present and existing rights of a pregnant, capacitous woman. In St George’s Healthcare NHS Trust v S;  R v Collins and others ex p S [1998] 2 FLR 728 Judge LJ in the Court of Appeal concluded that a capacitous adult should be entitled to decline medical treatment even if her life or that of the unborn child depended on it. The ‘powerful elucidation of the law’ by Buter-Sloss LJ in Re MB (An Adult: Medical treatment) [1997] 2 FLR 426 remained the starting point in all applications:

… a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though … the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation. The [law] does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.

The application in this case was based on the landmark decision of Munby J (as he then was) in Re D (Unborn Baby) [2009] 2 FLR 313. In Re D, Munby J was not exercising the inherent jurisdiction in relation to an incapacitated adult; he was concerned with the best interests of the baby when born. Munby J emphasised the ‘wholly exceptional’ circumstances in which anticipatory relief would be granted. It was necessary to ensure that it was not only ‘appropriate and justified’, but ‘imperatively demanded’ in the interest of safety in the period immediately following the birth of a child. It was always to be regarded as ‘highly unusual’ and a ‘very exceptional step’.

Hayden J went on the revisit in summary the exceptional circumstances of the Re D case which included: the fact that the mother was serving a custodial sentence due to a serious assault on her daughter during a supervised contact session; the mother’s continuing extreme distress and challenging behaviour including an attempt to take her own life in highly alarming circumstances in her cell; the fact that the mother had expressed the view that her children would be better off dead than in the care of the local authority. He emphasised that Re D was ‘a wholly exceptional case’ and reiterated that the courts and local authorities must be vigilant to ensure that the wholly exceptional nature of the relief was never lost sight of.

Hayden J did not consider that any more recent cases had weakened the test set out by Munby J in Re D. He did not consider that it would be helpful to set out prescriptive conditions but stated that to invoke the declaratory relief initially sought in this case the facts would require a level of ‘exceptionality’ and would be characterised by the ‘imperative demands’ and the ‘interests of safety’ of the newborn baby in the period immediately following its birth.

Hayden J held that the professional instincts in this case were sincere but they were ultimately misconceived. It was possible to keep the mother and baby together in a manner that respected the mutual need each for the other in the period immediately following birth which would have the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court could hear the inevitable applications.

Although the judgment had described the application as misconceived, the judge observed that professionals involved in these difficult decisions provided a huge service to the woman and babies they dealt with and society more widely. This case, Hayden J considered, had illustrated the challenges they faced and the debt we all owed to them.

Comment

This case is a useful reminder of the limits of the inherent jurisdiction (albeit as it applies in a rather different context to that jurisdiction as it applies in relation to vulnerable adults) and the wholly exceptional nature of the Re D case with its use of an anticipatory declaration in the interests of a child who has just been born.

It is also a useful reminder for local authorities and those who act for local authorities that good intentions and legitimate professional concerns can stray into the realm of paternalism.

[A version of this note appeared in the November 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

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Out of hours medical treatment applications – the key principles

In Sandwell and West Birmingham Hospitals NHS Trust v CD & Ors [2014] EWCOP 23, Theis J has set out clear guidance that must be followed in out of hours medical treatment cases (and is wider application for other out or hours applications before the CoP).   By way of context AB, a 20 year old woman with a multiple disabilities including a severe learning disability and cerebral palsy. She was admitted to hospital on 12 June 2014; her condition was such that her treating medical team wished to make an application for declarations that, in the event of her condition deteriorating, it would not be in her best interests to receive certain forms of life-sustaining treatment.   Legal advice had been sought by the Trust after a discussion with her father on 17 June; the parents met with Trust representatives on 19 June, and the application application was initially made to Theis J as the out of hours judge at about 5.15 pm on Friday 20 June 2014. The only information she had was the application, some medical notes and a two page document from Dr Y, the joint speciality lead in critical care medicine at the hospital. The Official Solicitor was not represented – differing reasons for this being given in the judgment; the mother joined the hearing by telephone, but it transpired that she was taking that call in the public area of the hospital.   Theis J took steps to contact the Official Solicitor who was able to arrange for Counsel; the hearing re-commenced at about 7.30 pm that date with counsel for the Trust and the OS in court and the parents and Dr Y on the end of a telephone. It had not been possible to secure representation for the parents in the short time available. Matters then ultimately progressed to an agreed order at a hearing on 30 July 2014 that it was not in AB’s best interests to be given certain life sustaining treatment.

Theis J was, however, sufficiently concerned about the timing and practical arrangements for the out of hours hearing on Friday 20 June that, having endorsed the order, she gave guidance which merits reproduction in full.

35. I, of course, accept that in cases involving medical treatment, or the withholding of such treatment, it can be a difficult judgment as to when to make an application. This has to be looked at in the context of the realities of the situation in a critical care unit in a Trust such as this one. The person who is the subject of the application is not the only patient being cared for by the clinical team, and the situation can evolve on the ground quite quickly. I recognise also that I am considering these aspects with the benefit of hindsight, and after hearing submissions from counsel who are specialist in this field.

36.  However, those considering making such applications should err on the side of making applications earlier rather than later. By doing so the necessary safeguards will be put in place in advance to support an effective hearing taking place, rather than risk what happened here, where those important safeguards had to be put in place as the hearing unfolded (such as involvement of the OS, ensuring the parents had the documents the court had and somewhere private from where they could participate in the hearing). This was particularly difficult in this case due to the time when the application was made, namely late on a Friday afternoon into the evening.

37.  It must have been clear from the 17 June that there was an issue relating to this between the Trust and the parents; the medical records record the Trust sought legal advice then. The issuing of an application would not prevent efforts continuing to seek to resolve matters; they can, and should, run in parallel. But importantly, issuing the application earlier would have meant it was more likely there would have been an effective on notice hearing, with all parties being represented and their Article 6 rights being fully protected.

38.  It is essential there is compliance with the relevant Court of Protection Practice Directions, in this context in particular PD9E Applications relating to the serious medical treatment and PD10B Urgent and interim applications.

39.  In the situation I was presented with on 20 June some basic steps had not been taken and, with the benefit of hindsight, they should have been. These included

(1) Making suitable and sensitive arrangements for the parents to be able to participate in the hearing. Clearly joining a hearing such as this from a public waiting room in the hospital was not suitable. There did not appear to be anyone on the ground at the hospital to assist the parents in relation to participating with this hearing, there should have been. The parents had solicitors advising them and every effort should have been made for them to be able to represent the parents at a hearing as important as this one. If the application had been issued earlier in the week it is likely the parents’ solicitor would have been able to secure public funding for them. As their solicitor states in his statement ‘If I had been given 2 days notice of this application I could have obtained legal aid for the [parents]. In my view this would have made a great deal of difference to them. The experience of going to court over the issue of whether life-sustaining treatment should be withheld from one’s child is extremely stressful even if one has proper legal representation, and I do not believe that families should be put in this position other than in the most urgent of cases, which this was not. The desirability of there being equality of arms between parties in cases involving life and death should be made clear to Trusts in my view.’ I agree wholeheartedly with those sentiments.

(2) Not alerting the OS to the application with sufficient time to get a direction from the court for him to be invited to represent AB. Paragraph 8 of PD9E makes it clear the OS is prepared to discuss applications in relation to serious medical treatment before an application is made. The medical notes could have been sent over in the morning of 20 June to the OS. There was no issue in this case AB lacked capacity. Ms Paterson has informed me that in serious medical treatment cases, where the applicant is a Trust or other public body, the OS will expect the applicant to agree to pay one half of his costs acting as a solicitor for P. Where agreement to do so is readily given, matters can then proceed without costs’ questions distracting his case manager. He will, of course, act as P’s litigation friend and solicitor without such agreement, seeking an order from the court if the agreement is not forthcoming.

(3) The court is there to assist in applications such as this one; the Urgent Applications Judge and the Clerk of the Rules should be alerted at the earliest opportunity that an application is likely and, in suitable cases, application promptly made for a direction for the OS to be invited to act where an application is realistically anticipated, as it clearly was in this case. This should have been done (at the very latest) by 2pm on 20 June. This would have enabled the OS to see the papers and start making enquiries at the earliest opportunity. Proper and effective contingency plans for a hearing that is likely must be put in place at the earliest opportunity, not, as happened in this case, left to the last minute.

(4) It is essential when making this type of application, particularly one that is made out of hours, that a word version of the draft order is available so any amendments can be made promptly.

(5) The statement in support of the out of hours application gave no information regarding the history or AB’s quality of life. Such information is essential material for the court when considering the context in which such an application is being made. There was nothing to prevent that information being obtained in tandem with the clinical and medical evidence justifying the application. The evidence was clear that there were a number of clinicians involved in treating AB. If the application had been made earlier this information would have been readily available.

40.  These observations, although made in the context of an application concerning an adult within proceedings in the Court of Protection, apply equally in similar proceedings under the inherent jurisdiction concerning medical treatment or the withholding of medical treatment for a child (in which CAFCASS Legal as opposed to the Official Solicitor would act on behalf of the child), where the relevant provisions in Part 12 FPR 2010 and PD12E Urgent Business apply.

41.  As I hope I have made clear these comments are made with the benefit of hindsight. It is recognised that on the ground difficult professional judgments have to be made, and there will remain truly urgent cases that require applications to be made out of hours. However, I hope the message is clear that in this type of case; where significant medical treatment or withholding of treatment is at issue, or likely to be at issue, applications should be made sooner rather than later. As Mr Sachdeva and Ms Paterson submitted, this will ensure all the necessary safeguards are in place in terms of legal representation and notification to the Press. In addition, the advantages of a hearing taking place in normal court hours includes the court being able to hear parties and evidence in person, and proper recording facilities being in place.”