The Vice-President of the Court of Protection, Hayden J, has published guidance on serious medical treatment applications in the Court of Protection. It covers (1) situations in which consideration must be given as to whether an application should be made and (2) the court’s expectations in relation to the making and progress of an application. It is expressly designed to operate until such time as it is superseded by the revised Code of Practice to the Mental Capacity Act.
The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D  EWCA Civ 1695. The hearing has been expedited and listed for 3 and 4 October. Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.
The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July. It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.
In this case, Charles J had to decide whether it was possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005. The question arose because the applicant – the wife of, and RPR for a man in a minimally conscious state – brought an application under s.21A MCA 2005 challenging the DOLS authorisation in place at the hospital he was in. She did so on the express basis that doing so would allow her to claim legal aid on a non-means-tested basis so as to be able to have legal representation to be able to argue her case that continuation of CANH was not in his best interests. Her position was opposed by the Official Solicitor, the Legal Aid Agency and the Secretary of State (as the Ministry of Justice and Department of Health collectively) on the basis that:
1. In the Official Solicitor’s case, non means tested funding is not available to present arguments relating to the care, support or treatment of a P as they related to conditions of detention, and were therefore outside the scope of s.21A (Article 5 not relating to conditions of detention);
2. On the Secretary of State’s case, such funding was only available where the issues related to “physical liberty.”
Charles J, in an extensive and wide-ranging judgment, came to the very clear conclusion that both of these arguments were wrong, and that it was entirely proper for the Court of Protection on a s.21A application to consider the question of whether CANH was in Mr Briggs’ best interests as part and parcel of the discharge of its functions under s.21A MCA 2005. The following conclusions from his judgment are of particular relevance or importance:
1. The clear conclusion that a DOLS authorisation does not authorise the care plan for, or medical treatment of P, or protect those who are providing them from liability for so doing. It is limited to authorising the deprivation of liberty that those acts create (paragraph 48);
2. The determination of whether the deprivation of liberty is in P’s best interests, necessary and proportionate “has to involve consideration of P’s circumstances in a hospital or care home and so of the care, support and treatment proposed or provided to meet P’s needs in them even if it is limited to a consideration of their effect” (paragraph 50), and hence “the determination of the questions posed by the definition of the best interests condition must involve a consideration of: i) the impact of possible and available alternatives and issues of degree, and ii) as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so” (paragraph 52);
3. That generally the COP should take control of all aspects of the case when proceedings are brought under s.21A MCA (even if an authorisation should remain in place to allow non-means-tested legal aid to continue to be justified: paragraphs 29-34). This was particularly the case in the proceedings before him given the nature of the CANH best interests issue (paragraph 70), in which the determinative or central issue was whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2) MCA 2005. The determination of that issue by the COP would found and so was directly relevant to its consideration of its exercise of its functions under s.21A (which it can exercise whether or not proceedings have been issued under s.21A) (paragraph 76);
4. Whatever the precise requirements of Article 5 ECHR, a literal construction of DOLS shows that they went beyond that required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself (paragraph 87). This showed that:
91. […] in a case such as this when the purpose of the placement in the hospital is obviously for care and treatment the “all or nothing approach” advanced effectively on the basis that P will continue to be deprived of his liberty whatever regime of treatment is put in place (and so whether or not CANH is in Mr Briggs’ best interests) runs contrary to a best interests consideration of the circumstances P (Mr Briggs) is in on the ground as it seeks to exclude a consideration of P’s views etc. under s. 4(6) and whether the conditions can be improved or made less restrictive under s. 1(6) of the MCA.
Alternatively, if it is said that the views of P on (life sustaining or other) treatment can be taken into account in considering whether he should be deprived of his liberty (or his personal liberty should be removed) this takes one back to the central issue in this case namely the impact of Mr Briggs’ views etc. under s. 4(6) on whether treatment should be withheld with the consequence that he should be allowed to die. It would be very artificial and in my view callous to say that this was irrelevant to the issues relating to his physical liberty, or the termination of the exiting DOLS authorisation, because during the period after the cessation of the CANH leading up to his death his physical liberty would not change even if (as is at least likely) he moves from the hospital to a hospice.
5. The acknowledgement that the best interests assessor will not be able to carry out the intense scrutiny that the COP can and would have practical difficulties in challenging the medical decisions that found protection from liability under s. 5 MCA. Charles J noted, however, that the assessor could reach his best interests assessment on the basis of the views of the treating team leaving it to P or his RPR to challenge the authorisation or put a condition on the authorisation or limit its duration to enable any dispute to be put before the COP (paragraph 94);
6. Further, even if the best interests requirement under DOLS was limited in the way that the Official Solicitor and the Secretary of State argued, the best interests test as then applied by the Court of Protection in determining whether CANH should be continued was related to matters arising under s.21A(2)(a)-(d), because (1) it was related to the best interests condition of the best interests requirement; (2) and provided the answers or information relevant to the answers to the questions of: (a) the period of the standard authorisation (e.g. until a move to a hospice or a rehabilitation unit); (b) the purpose of the standard authorisation, namely whether the treatment should or should not include CANH; and (c) conditions of the standard authorisation (e.g. about preparations to be made for a move). These answers informed – Charles J held – what the COP can order under s.21A(3) by way of variation or termination of the standard authority itself or by direction to the supervisory body (paragraphs 96-99). Charles J noted in this regard that:
This view of the width of what the COP can properly do under s. 21A is confirmed when other types of case are considered. For example, when P is in a care home the best interests issues can encompass changes in the care plan (incorporated into or on which the standard authorisation is based) involving less restrictive options, the giving of medication covertly or in particular circumstances, the use of restraint, more visits to the community and contact. Even if they are outside the factors to be considered under the qualifying requirements (and so the best interests condition) they:
i) inform and so relate to the matters referred to in s. 21A (2)(b) to (d), and
ii) inform the order or orders to be made under s.21A(3), (6) and (7) in respect of the DOLS authorisation that has been granted (and if necessary extended by the COP applying the approach in Re UF).
7. Finally, Charles J noted that, on a purposive intention of the legislation, Parliament would not have intended the COP to be concerned with the distinctions advanced in this case by the Secretary of State, the LAA and the Official Solicitor:
108. Absent the issue relating to the availability of non means test legal aid, which it is common ground is irrelevant, these distinctions are not agreed between them, give rise to fine, difficult and potentially emotionally draining issues (e.g. whether a decision that leaves out of account the views etc. of P on whether he should be detained at place A or place B relates to his personal liberty or a deprivation of his liberty within Article 5 having regard to its subjective element) and are irrelevant because the COP can deal with all issues in this case in an application brought in reliance on s. 21A or an application brought seeking orders under ss. 15 and 16 of the MCA. […]
Charles J therefore held that Mrs Briggs could properly raise the issue of whether CANH should be continued as part of her s.21A challenge as RPR for her husband. We address the substantive decision in relation to her husband’s treatment in the separate case comment below.
On one view, it would appear odd that a s.21A application could be used as a vehicle to challenge decisions about CANH, and it is undoubtedly the case that Mrs Briggs was “lucky” that there happened to be in place a DOLS authorisation at the hospital to allow her to do so (note that Charles J expressly did not decide whether or not in fact Mr Briggs was deprived of his liberty, as this was assumed to be the case for purposes of the preliminary issue decided here).
However, once one steps away from the specific place that CANH has as a type of serious medical treatment (‘SMT’) and the mindset of SMT cases, Charles J’s logic would seem impeccable. DOLS may have been designed to plug the Bournewood gap, and to that end could have been limited solely to a determining whether or not the deprivation of liberty was necessary and proportionate (the test for Article 5 purposes). However, the scheme undoubtedly went further to include a specific best interests requirement which, in turn, requires the application of the best interests test under s.4 MCA 2005. Once the best interests genie was let out of the bottle, that must carry with it the connotation that those concerned with considering the requirement (and the court on a s.21A application) must have a wide view of the nature and purpose of the authorisation and – in turn – asking whether the care and treatment which gives rise to the need for it is, in fact, in the person’s best interests.
It is, perhaps, not surprising – given the implications for legal aid in s.21A applications – that the Secretary of State/Legal Aid Agency are seeking permission to appeal to put the best interests genie back in its bottle.
Newton J has very recently authorised the publication of the order he made in St George’s Healthcare NHS Trust v P & Q  EWCOP 42 (discussed here). The order makes clear what we had suspected must have been the case (but was made inadvertently ambiguous in the judgment), namely that he did not order the Trust to continue providing P with renal replacement therapy; rather he declared that it was lawful (being in his best interests) for him to continue receiving it. Had he ordered the Trust to continue providing such treatment, that would have represented a very significant step over the well-respected dividing line between the roles of the court and clinicians.
In an unusual and tragic case, Re A (A Child)  EWHC 443 (Fam), brought by an NHS Trust seeking declarations as the fact that a child was brain dead and that the ventilator providing them with life support could be turned off, Hayden J has confirmed what should happen where there is doubt as to whether brain steam death has occurred in a child. Although a Coroner has concurrent jurisdiction and the High Court has jurisdiction over a body, Hayden J referred with approval to the passage in Jervis on Coroners (13th Edition) at paragraph 5-14, which provides that:
“The coroner may also be faced with the difficult task of deciding whether a body in his area is actually dead, for instance when it is connected to a life support machine in an irreversible coma… it appears that once a person has suffered brain stem death which no medical treatment is able to reverse, the person is ‘dead’ for the purposes of the coroner acquiring jurisdiction even whilst a machine ventilates the body.”
Hayden J continued:
“21. […] That proposition is said to be supported by Mail Newspapers v Express Newspapers  FSR 90; Airedale NHS Trust v Bland  AC 789. The footnote also refers to Thurston’s Coronership: 3rd Edition 1985, which sets out the view that I have just recorded but also the opposing one, that while the heart beats and the blood circulates, there is no “dead” body i.e. for the purposes of establishing the Coroner’s jurisdiction. I note that the distinguished authors also make the following observation which, in tone, seems to imply that they regard it as self evident:
‘Of course, in practice no Coroner would insist on taking possession of the body were it was still connected to a life support system.’
22. I associate myself entirely with those observations. I cannot conceive of any circumstances in which the Coroner should seek to intervene, where a body remains ventilated, beyond those circumstances concerning the removal of organs where the family are consenting. Any other approach I regard as likely to generate immense distress and contribute to an atmosphere where sound judgment may be jeopardised.”
Exactly the same propositions must hold true in relation to adults and, as with a child, the proper forum for resolution of the questions that follow upon brain death must be the Court (in that case, the Court of Protection).
[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]
Mr Justice Keehan has just handed down a very important judgment (NHS Trust & Ors v FG  EWCOP 30) in which he gives guidance as to when and how applications should made where a treating Trust is concerned that pregnant woman lacks, or may lack, the capacity to take decisions about her antenatal, perinatal and post natal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from a diagnosed psychiatric illness.
A post here addresses the details of the judgment (which also includes confirmation that the acid test set down in Cheshire West applies in the hospital setting). Reproduced here, however, is the Guidance in full (which appears as an annex to the judgment). As Keehan J noted at the conclusion of his judgment:
“129. The Guidance is not intended to restrict the cases where Trusts make an application to the Court to only those cases which fall within categories 1 – 4. It identifies those categories of cases which should be the subject of an application. It must always remain open to Trusts to make an application to the Court in cases of this nature if the individual circumstances of the case justify it.
130. I hope that early and thorough planning in cases of this nature will result in the proper identification of cases which require an application to the Court and, on the contrary, those which can properly and appropriately be managed under the provisions of MCA 2005 and/or MHA 1983 without judicial involvement.”
- In this guidance the following terminology will be used:
‘P’ the pregnant woman who lacks, or may lack, the capacity to take decisions in relation to her antenatal, perinatal and postnatal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from her psychiatric illness;
‘obstetric care’ all care and treatment needs brought about by P’s pregnancy including antenatal care, management of labour and delivery, and postnatal care;
‘Mental Health Trust’ the NHS Trust responsible for P’s psychiatric care, whether in the community or in a psychiatric hospital;
‘psychiatric hospital’ any mental health unit at which P resides, whether detained pursuant to statutory powers or as a voluntary patient;
‘acute hospital’ a hospital other than the psychiatric hospital at which it is intended that P will receive obstetric care and deliver her child;
‘Acute Trust’ the NHS Trust responsible for the acute hospital;
‘Court’ either the Court of Protection or the Family Division of the High Court.
2. This Guidance applies in cases where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care (see paragraph 1 above) resulting from a diagnosed psychiatric illness, falls within one of the four categories of cases set out in paragraph 3 below.
3. An Acute Trust and/or Mental Health trust should make an application to seek orders in relation to P’s obstetric care to the Court of Protection or to the Family Division of the High Court if the case falls within any of the following four categories, namely where:
Category 1 – the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of COP Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the MCA or MHA; or
Category 2 – there is a real risk that P will be subject to more than transient forcible restraint; or
Category 3 – there is a serious dispute as to what obstetric care is in P’s best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under s.4(7) of the MCA; or
Category 4 – there is a real risk that P will suffer a deprivation of her liberty which, absent a Court order which has the effect of authorising it, would otherwise be unlawful (i.e. not authorised under s4B of or Schedule A1 to the MCA).
4. In relation to category 1, it is recommended that the following categories of case should be the subject of an application to the court, namely :
- (i) delivery by caesarean section is proposed in circumstances where the merits of that proposal are finely balanced; or
- (ii) delivery by caesarean section is proposed and is likely to involve more than transient forcible restraint of P.
5. It may be appropriate to make an application to the court in cases which do not fall within the categories set out in paragraph 3 above; it will depend on the facts of the case. If an application is so made, the provisions of this Guidance should be followed.
6. The early identification of an individual in respect of whom an application might have to be made is essential. In the case where P is detained under the provisions of the Mental Health Act 1983, the lead professional is likely to be a treating psychiatrist at the hospital where P is detained. In the case where P is living in the community the lead professional is likely to be a member of P’s midwifery team.
7. Once P has been so identified, the Acute and Mental Health Trusts should liaise to assess P’s capacity to make decisions in respect of her obstetric care and to plan how and when such care is to be delivered in her best interests.
8. An assessment of P’s capacity to litigate should be undertaken; this will usually be performed by P’s treating psychiatrist.
9. Capacity may, of course, fluctuate and it is extremely important to keep the issue of capacity under regular review.
10. Where there are concerns about P’s ability to care for her unborn child the Acute and/or Mental Health Trusts should notify the relevant social services department of P’s case if social workers are not already involved with her. The local authority should commence child protection procedures immediately upon receipt of a referral. Thereafter, there should be regular liaison and co-operation between the Acute Trust, the Mental Health Trust and the local authority.
11. The Acute and Mental Health Trusts, together with the relevant local authority, should hold regular planning and review meetings (‘professionals meetings’). Those meetings should be minuted. Multi-agency co-operation is likely to be an essential feature of the planning process to achieve the best outcome for P and her unborn child.
12. An identified clinician from the Acute Trust or the Mental Health Trust should be appointed to chair the planning and review meetings.
13. Part of the planning process should involve identifying whether and, if so, when a decision by the Court will be required to authorise obstetric care or any deprivation of liberty to facilitate its provision.
14. The planning process should include consideration of an assessment of the risk of harm, if any, which P poses to herself, to her unborn child or to others. Where any professional considers such a risk exists that assessment must be recorded in writing and presented at the next professionals meeting.
15. If as a result of the risk assessment the local authority proposes to make an application under the inherent jurisdiction for permission to withhold the care plan for the unborn child from P, the application should be made, save in the case of a genuine emergency, no later than 4 weeks before the expected date of delivery. (The threshold for the granting of such an application is high and applications will not be granted routinely).
16. If an application is made by either the Trusts or by the local authority for permission not to notify P of the application(s) and it is thought appropriate to apply for a Reporting Restrictions Order, the applicant(s) must give full and proper notice to the print and broadcast media of the same.
17. A decision by one agency to withhold information from any other agency must be recorded identifying the cogent reasons for the decision. The agency, from whom information is to be withheld, must be notified of the same at the earliest opportunity.
18. Where it is decided that P’s case falls within one of the four categories set out in paragraph 3 above or it is otherwise decided to make an application, an application should be made to the court at the earliest opportunity.
19. Save in a case of genuine medical emergency, any application should be made no later than 4 weeks before the expected date of delivery. This time frame is required for the following reasons:
(i) where P is assessed as lacking capacity to litigate, it will enable the Official Solicitor to undertake any necessary investigations;
(ii) to ensure the final hearing is listed and heard at least a few days before the proposed interventions; and
(iii) to enable a directions hearing to be held around 2 weeks before the final hearing. The court and the parties will then have the opportunity to ensure the court has all the relevant and necessary evidence at the final hearing.
20. In compliance with the timetable set out above, the Trusts should in a timely manner, take the following steps:
(i) issue the application
(ii) notify the Official Solicitor of the application;
(iii) disclose any evidence to the Official Solicitor which they consider appropriate;
(iv) seek an urgent directions hearing, preferably around two weeks before the final hearing, at which disclosure and the scope of the evidence can be determined;
(v) liaise with the Clerk of the Rules to list the substantive hearing at an early stage.
21. It is important that the Trusts should seek early advice and input from their legal advisers.
22. Late applications are to be avoided save in a case of genuine medical emergency. They have four very undesirable consequences:
(i) the application is more likely to be dealt with by the out of hours judge and without a full hearing in public;
(ii) the available written evidence is more likely to be incomplete and necessitate substantial oral evidence;
(iii) it seriously undermines the role that the Official Solicitor can and should properly play in the proceedings; and
(iv) it deprives the court of the opportunity to direct that further evidence, including independent expert evidence, if necessary, is obtained in relation to the issue of capacity or best interests.
This approach is dictated by P’s Article 5, 6 and 8 rights and best interests.
23. The following evidence should be filed and served in every application:
(a) In the event that P is to be transferred from a psychiatric hospital to an acute hospital for her obstetric care, a care plan from the Mental Health Trust for that transfer, to include
(i) when and, if not at a defined time, the circumstances in which P is to be transferred;
(ii) the form of transport (ambulance, secure taxi etc.)
(iii) which members of staff are to accompany P;
(iv) an assessment of the prospects of P not co-operating with the transfer;
(v) whether any specialist advice has been obtained in relation to the restraint of pregnant women and, if it has, the nature of that advice;
(vi) the plans for any restraint that may be used to facilitate the transfer, including who is to undertake the restraint, at whose direction, and with a description of the techniques to be used;
(vii) a clear description of what P’s status will be under the MHA during transfer and whilst at the acute hospital.
(b) A care plan from the Acute Trust for P’s obstetric care, including:
(i) the obstetric interventions and care that are proposed;
(ii) what anaesthesia is planned, or may be required
(iii) when, where and by whom the interventions, care and anaesthesia are to be delivered;
(iv) what further interventions may become necessary and in what circumstances.
(c) A care plan from the Acute Trust relating to the issue of restraint at the acute hospital, including:
(i) an assessment of the prospects of P not complying with the obstetric interventions and care that is proposed;
(ii) in a stepwise and escalating fashion, a description of the measures and techniques to be used;
(iii) who is to undertake the physical or chemical restraint;
(iv) whether any specialist advice in relation to the restraint of pregnant women has been obtained and, if so, the nature of that advice.
(d) A witness statement from P’s responsible clinician (or to the extent that he/she cannot deal with the issues, from others) which:
(i) contains an overview of P’s psychiatric history;
(ii) details the liaison between the psychiatric and obstetric teams caring for P
(iii) includes a focused assessment of P’s capacity to consent to the obstetric treatment which is proposed
(iv) sets out the duration for which P’s lack of capacity is likely to persist despite any steps that can reasonably be taken to help her regain capacity
(v) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;
(vi) endorses the plan for transfer and any restraint during it;
(vii) compares the impact upon her mental health of the proposed obstetric treatment and restraint and any alternatives;
(viii) assesses what obstetric treatment is in P’s best interests from a psychiatric perspective.
(e) A witness statement from a consultant obstetrician (or to the extent that he/she cannot deal with the issues, from others) which:
(i) contains an overview of P’s obstetric history so far as it is known;
(ii) reviews the obstetric care already provided in the present pregnancy;
(iii) details the liaison between the obstetric and psychiatric teams caring for P;
(iv) explains what obstetric treatment and interventions are proposed;
(v) identifies what alternative management strategies exist
(vi) deals with the anaesthesia which may be used and its risks/benefits
(vii) refers to the obstetric care plan;
(viii) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;
(ix) endorses the care plan for restraint at the acute hospital;
(x) compares the risks and benefits to P of the proposed obstetric treatment and interventions versus the alternatives and justification as to why the plan proposed is in P’s best interests;
(xi) explains why the proposed obstetric treatment and interventions are in P’s best interests.
(f) Witness evidence, which may be contained in the witness statements from the consultant psychiatrist and obstetrician, which:
(i) sets out, insofar as they are able, P’s past and present wishes and feelings and beliefs and values in relation to
(1) the pregnancy;
(2) obstetric care, including the proposed obstetric care and interventions;
(3) the importance of minimising the risk to her own health during pregnancy and delivery of her baby;
(4) the importance of maximising the prospects of safe delivery of the baby;
(ii) explains whether P knows of the application and, if not sets out the cogent reasons why P has not and should not be informed of the application;
(iii) identifies the individuals whose views should be taken into account in accordance with s.4(7) of the MCA and sets out the gist of their views as to
(1) whether the obstetric care that is proposed is in P’s best interests and, if not, what care they consider would be;
(2) P’s own past and present wishes and feelings and beliefs and values in relation to the matters in (i) above.
24. Any orders authorising medical intervention, restraint and/or a deprivation of liberty are, of course, permissive and not mandatory. P’s capacity to make decisions and/or the need to take any of the measures authorised by the court must be kept under close review by her treating clinicians and medical professions throughout P’s antenatal, perinatal and postnatal care.
1. Application notice
2. Transfer Care Plan (where relevant)
3. Obstetric care plan
4. Restraint care plan
5. Witness statement from the responsible consultant psychiatrist
6. Witness statement from the responsible consultant obstetrician
In Sandwell and West Birmingham Hospitals NHS Trust v CD & Ors  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.”