22/10/2019

Welcome to the autumn edition of Healthline. We hope that you will find the following articles interesting and useful.

Serious Medical Treatment for a Capacitated Child: A Neat Reminder of the Law

Ruth Atkinson-Wilks considers the judgment in University Hospitals Plymouth NHS Trust v B (A Minor) [2019] EWHC 1670 (Fam). The case provides a useful reminder on the law relating to medical treatment and capacitated children, and contains a helpful list of the issues that the court will need to consider.

Can the Court of Protection make orders on behalf of people who have capacity?

Melanie Lothbrok considers:-

What healthcare practitioners should do if an individual has capacity to make a decision about their care at certain times but is likely to lose capacity at other times,
Whether the Court of Protection has jurisdiction to make decisions on behalf of someone who currently has capacity,
At what stage an application should be made to the Court of Protection.

Withdrawal of treatment: Patient’s wishes can outweigh medical evidence

Monika Nagy reviews the case of Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG & Anor [2019] EWCOP 21 in which the court decided that it was in the patient’s best interests for treatment to continue, based on their wishes and feelings and contrary to medical evidence.

Gross negligence manslaughter in the healthcare setting

Lauren Howe looks at what Trusts need to know in relation to Gross Negligence Manslaughter.

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Serious Medical Treatment for a Capacitated Child: A Neat Reminder of the Law

Bevan Brittan was instructed to act in the case of University Hospitals Plymouth NHS Trust v B (A Minor) [2019] EWHC 1670 (Fam). The court ordered that it was in B’s best interests for doctors to administer treatment in the absence of her consent.

The reported judgment of Mr Justice Macdonald provides a useful reminder on the law relating to medical treatment and capacitated children, and contains a helpful list of the issues that the court will need to consider.

In summary, B was a 16 year old girl diagnosed with Type 1 diabetes. B was deemed to have capacity to make decisions regarding her treatment but was refusing to take insulin, stating that she wished to die.

In the absence of taking insulin, B’s clinical condition worsened and she developed diabetic ketoacidosis. If left untreated, this would have led to brain swelling and, ultimately, to death. B was aware of the risks of DKA not being treated but continued to report to clinicians that she wished to die.

Bevan Brittan LLP made an application to the High Court on behalf of the applicant trust for permission to administer intravenous fluids and insulin (intravenous and subcutaneous) to B in the absence of her consent. The application was made under the inherent jurisdiction on the basis that B was a vulnerable young person who had capacity to make decisions regarding her treatment.

Judgment

In his judgment, Mr Justice Macdonald began by noting that a refusal from a minor recognised by law as having capacity to consent (whether given by a child over the age of 16 or a younger Gillick competent child) is not binding on the doctors, and can be overridden by a person with parental responsibility or the court.

Justice MacDonald held that he was entirely satisfied that it was in B’s best interests for him to make the orders sought by the NHS Trust. The medical evidence confirmed that B’s situation was serious and her DKA condition would be fatal if left untreated. The window for administering treatment is a narrow one and the judge held that the circumstances of this case, the presumption in favour of preserving B’s life was a very compelling factor.

The judge gave weight to the evidence that there was “universal consensus” in the paediatric community that the treatment proposed would be effective in ameliorating B’s DKA and thus carried with it manifest benefits. The judge also noted that B’s grandfather was in favour of the treatment being administered.

Regarding B’s wishes and feelings, the judge held that the law is clear that the court is not mandated to accept the wishes and feelings of a competent child where to honour those wishes and feelings would result in manifest, and even fatal, harm to that child. The judge considered B’s wishes and feelings, but noted an awareness that children who suffer chronic medical conditions sometimes enter a rebellious phase in their teens and seek to control their situation by refusing to cooperate with treatment. The Judge also gave weight to the fact that B had already consented to admission to hospital, to a series of blood tests and to insertion of cannula, all of which suggested a degree of co-operation.

Comment

This case is a useful reminder that the High Court can be used in situations where the Court of Protection does not have jurisdiction. It is also a reminder of the law relating to medical treatment and children, and of the strength of the presumption of preserving life when the courts are dealing with those under the age of 18.

It also raises some other interesting issues, such as the importance of providing the court with clear evidence regarding the benefits of the treatment being proposed. This is something that can get overlooked in the flurry of preparing an urgent application. Great weight was placed on the evidence provided to the court that the treatment for DKA is “meticulously standardised” in the United Kingdom and that there exists “universal consensus” in the paediatric community about the interventions that are required.

It is also worth noting that Mr J Macdonald’s assertion that a decision of a minor to refuse treatment can be overridden by a person with parental responsibility or the court. This is a broader interpretation of the previous case law, which has tended to only allow a person with parental responsibility to make a decision for a child if it falls within the scope of parental responsibility. However, this is likely to be a product of the fact that parental responsibility was not a key issue in this case and therefore it was not necessary for the court to provide further detail on this point, rather than the judge intending to broaden the position on this.

How Bevan Brittan can help

Our team of specialists has extensive experience in the field of “serious medical treatment.” In addition to this case we have recently acted in cases concerning:-

Obstetric / gynaecological treatment for women with mental health difficulties;
Organ or bone marrow donation by a person who lacks capacity to consent;
Non-therapeutic sterilisation of a person who lacks capacity to consent; and
Lifesaving but invasive surgical treatment.

Our team can:-

Rapidly respond to urgent serious medical treatment;
Screen matters to determine if an application to court is necessary;
Engage positively with the media
Help with court applications:
- Provide templates and guidance for compelling evidence;
- Support your staff to deliver their evidence confidently and competently;
- Manage the risks to your organisation; and
- Effectively represent your organisation with experienced advocates

For further information or to discuss any aspect of this article, please contact Ruth Atkinson-Wilks.

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Can the Court of Protection make orders on behalf of people who have capacity?

It is well-established that the gateway to the Court of Protection is a lack of capacity. In other words, a person must be proven to lack capacity in order for a decision to be made by the Court of Protection on their behalf.

But what should healthcare practitioners do if an individual has capacity to make a decision about their care at certain times but is likely to lose capacity at other times? Does the Court of Protection have jurisdiction to make decisions on behalf of someone who currently has capacity? If so, at what stage should an application be made to the Court of Protection? These are issues that have come into sharp focus with a series of recent decisions.

For healthcare providers and commissioners, these questions are crucial given the complexities of fluctuations in capacity of patients with complex needs, the importance of robust contingency planning and the need to ensure that timely Court of Protection applications are made.

When can the Court make anticipatory declarations?

Court of Protection practitioners frequently grapple with the difficulties posed by fluctuating capacity, particularly in obstetrics cases. While the Court has given guidance about the need to approach the Court in good time in obstetric cases in NHS Trust v FG [2014] EWCOP 30 (read more at https://www.bevanbrittan.com/insights/articles/2014/courtguidanceonobstetriccases/), a recent case has provided important guidance in relation to patients who currently have capacity but are at high risk of losing capacity.

United Lincolnshire Hospital NHS Trust v CD [2019] EWCOP 24 concerned CD, a pregnant woman who was detained under section 3 of the Mental Health Act 1983. CD had paranoid schizophrenia, emotionally unstable personality disorder and suffered from polyhydramnios (an excess of amniotic fluid in the amniotic sac). Although CD currently had capacity to make decisions about her care and birth, CD’s treating clinicians believed there was a substantial risk that she would lose capacity at a critical point in her labour. If this happened, there would be insufficient time to make an application to the Court while ensuring her safety and well-being. Francis J agreed that this would be an unacceptable risk to the lives of CD and her unborn child.

In a highly unusual decision, Francis J made anticipatory declarations to come into effect in the event of CD losing capacity. Francis J accepted that CD currently had capacity to make decisions about her labour and delivery, but ordered that if she lost capacity in an emergency situation, then CD’s treating clinicians could follow the proposed care plans. These plans included restraint and a C-section under general anaesthetic if this was necessary and in CD’s best interests.

Exceptional circumstances

Francis J made clear in his ruling that these were exceptional and unusual circumstances where there was an unacceptable risk to life. However, anticipatory declarations have since been made in subsequent cases.

Bevan Brittan recently represented South London and Maudsley NHS Foundation Trust in an application before Hayden J concerning a pregnant woman with bipolar affective disorder (further details can be found at https://www.theguardian.com/society/2019/sep/02/doctors-permission-perform-caesarean-section-woman-mental-health). Although she had capacity to consent to obstetric treatment, her consultant psychiatrist believed there was a substantial risk of her losing capacity close to or during labour due to agitation and psychotic episodes. Hayden J made anticipatory orders authorising the proposed care plans in the event of the woman losing capacity, which included an emergency C-section against her wishes if it was required. Hayden J noted that this case was exceptional and that the order he had been asked to make was ‘draconian’, but that such measures were necessary in order to preserve the lives of the woman and her unborn child.

Anticipatory orders are not just used in obstetric cases. In Wakefield MDC & Wakefield CCG v DN [2019] 9 WLUK 38, Cobb J made anticipatory declarations that DN, a man with autism, who lacked capacity to make decisions about his residence and care during episodes of aggressive and violent behaviour. These declarations would enable the authorisation of any interventions by his care team and any deprivation of liberty during periods where he had lost capacity. Notably, this was not an emergency situation and there was no imminent risk to DN’s life.

What does this mean for healthcare providers and commissioners?

Subsequent judicial comment has indicated that anticipatory declarations and orders should be approached with caution. The Court of Protection is keen to maintain the least restrictive option, so such declarations are controversial and there are likely to be further cases on this point.

A key consideration for healthcare providers and commissioners is whether the case is an exceptional circumstance - is it an emergency situation in which any delay in involving the Court of Protection would pose an unacceptable risk to the patient’s safety? This is a difficult balancing act between the requirement to seek the least restrictive option and to respect an individual’s capacity to make decisions, and the obligation to protect the individual from known future risks, including the risks posed by delays in bringing the matter before the Court of Protection. Any application will need to have robust evidence explaining why anticipatory declarations are sought in relation to a person who does not currently lack capacity.

This is a developing and difficult area of law and it is important to take early advice. If there is any concern that an individual might lose capacity at critical moments, which could pose an unacceptable risk to their health, then legal advice should be sought on making a Court application without delay.

Our team of specialists are market leaders for Court of Protection, mental health and capacity advice and continue to be involved in many of the most high profile, influential and important mental health and Court of Protection matters in England and Wales. Not only do we have the technical expertise to competently advise your organisation on meeting its complex obligations and responsibilities owed to service users, but we have developed a series of innovative products and tools that will really meet your needs and help you solve difficult dilemmas as they arise.

For further information or to discuss any aspect of this article, please contact Melanie Lothbrok.

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Withdrawal of treatment: Patient’s wishes can outweigh medical evidence

Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG & Anor [2019] EWCOP 21

The court decided that it was in the patient’s best interests for treatment to continue, based on their wishes and feelings and contrary to medical evidence.

The facts

TG suffered a massive subarachnoid haemorrhage followed by a secondary cardiac arrest while attending church on 16 December 2018. There was a delay before resuscitation was started. During the resuscitation, an endotracheal tube was inserted to maintain TG’s airway. In hospital, the scans showed that TG had suffered extensive brain damage.

During the hearing, the judge heard expert medical evidence. This concluded that TG was in a vegetative state and that any response to her family and outside stimuli was a reflex, rather than a conscious response. The family disagreed with this as they believed that TG was able to respond to people who were close to her.

The medical expert said that there was a small chance of TG’s condition improving to Minimally Conscious State (MCS) minus. This would enable her to have awareness of pain, but nothing more. There was no chance of her recovering to MCS plus, which might permit simple vocalisation, answers to basic questions and the ability to recognise people close to her.

The Trust’s view was that it was not in TG’s best interests to continue with intubation as there was no benefit. The Trust argued that nature should be allowed to run its course, with the likely result that TG would die.

The Judge’s considerations

Mr Justice Cohen considered the provisions of section 4 of the Mental Capacity Act 2005, which sets out the following matters that the court must consider when assessing best interests:

The person’s past and present wishes and feelings and in particular any written statement (which was not available in this case);
The beliefs and values that would be likely to influence the decision, if the patient had capacity;
Other factors that the patient would be likely to consider if she was able to do so;
The views of anyone named by the person who should be consulted on the matter in questions or on matters of that kind; and
The views of anyone engaged in caring for the person or interested in the person’s welfare.

Mr Justice Cohen considered TG’s wishes as set out in her family’s witness statements. These indicated that:

Her family was central to TG and she would want to remain part of the family, no matter what form this would take, for as long as possible;
TG had the utmost respect for life because of its intrinsic value and she believed that it was for God to take it away. She would have never accepted anyone else facilitating her death;
TG’s Catholic faith and her belief in God were a crucial part of her life.

The judge noted that 6 months were required before a vegetative state was confirmed to be permanent, based on the Royal College of Physician’s guidance. In TG’s case, only two months had passed.

The decision

Mr Justice Cohen accepted the Trust’s view that TG’s movement was a reflex response and that any improvement in her state would be minimal. He noted that TG’s wishes were a central feature in making his decision about her best interests.

He stated that the benefits of removing the tube would be:

It would end the process which brings no significant benefit to TG; and
It would remove the possibility of indignity and/or pain.

If intubation continued the benefits would be that:

There would be a continuation of life;
There would be recognition of TG’s wishes;
It would enable her life to be ended in accordance with God’s will;
It would permit the possibility of some improvement to her state; and
It would provide TG with the opportunity to play a part in her family, even though she would be unaware of it.

Mr Justice Cohen decided that it was in TG’s best interests for the intubation to continue. He commented: “I recognise that this places a huge burden on the treating team. It is against their advice and their wishes and of course also those of Dr Newman but I remind myself constantly, this is her life and her wishes as I have found them to be and nobody else's. It may be that if the position were to remain the same in six months' time or no successful tracheostomy had been carried out that different considerations might apply but I am not looking at the future, I am looking at things as they are now and for those reasons I reach my decision and refuse the application."

Practical impact

The patient’s wishes and feelings are central to the decision of what may be in the patient’s best interest, even if the information is only available indirectly and even if the medical evidence supports an opposite view.

For further information or to discuss any aspect of this article, please contact Monika Nagy.

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Gross negligence manslaughter in the healthcare setting

Gross negligence manslaughter arising in a healthcare setting is in the spotlight again due to the recent trial in Guernsey of two mental health nurses who were found not guilty. While the trial attracted less coverage than the trial of Dr Hadiza Bawa-Garba and two nursing colleagues in 2015, it has reignited the discussion about gross negligence manslaughter and the issues for health care professionals.

The test for gross negligence manslaughter

Gross negligence manslaughter is a criminal offence and the test for this was originally set out in R v Adomako [1995] 1 AC 171 as follows:

The defendant owed the victim a duty of care;
The duty of care was breached;
The breach caused or significantly contributed to the death of the patient;
The breach was grossly negligent and therefore a crime.

The final limb of this test can be particularly difficult as two people may perceive an action very differently. What constitutes a grossly negligent act or omission requires a moral judgment. It is stated in case law (R v Sellu [2016] EWCA Crim 1716) that the act or omission has to have been ‘truly, exceptionally bad’ to reach the threshold of gross negligence. Crucially, however, there does not need to be malice or an intention for harm to be caused.

Overview of cases since Adomako

Since the Adomako case in 1994, a total of 47 healthcare professionals have been prosecuted for gross negligence manslaughter (37 doctors, 9 nurses and 1 optometrist). Of these, 23 professionals were convicted, although the verdicts for 4 were overturned on appeal. Between January 2013 and March 2018, the CPS received 151 referrals of which 7 were prosecuted and 4 convicted. As a general trend, however, numbers of prosecutions have remained low. While still a rare occurrence, an investigation for gross negligence manslaughter can be an extremely stressful and distressing time for a healthcare professional. Alongside a criminal investigation, there may also be a local investigation such as a Serious Incident Report, inquest, local disciplinary investigations and investigations by regulatory bodies such as the GMC or NMC.

Recent reviews

The Dr Bawa-Garba case caused additional consternation for clinicians as many clinicians felt that Dr Bawa-Garba was let down by the GMC following her gross negligence manslaughter conviction. The GMC appealed against the Medical Practitioners Tribunal Service decision to suspend Dr Bawa-Garba rather than strike her off. The resulting breakdown in trust between the GMC and clinicians led to the GMC commissioning an independent review of gross negligence manslaughter. This review was chaired by Leslie Hamilton, a former cardiothoracic surgeon and coroner. The review has led to 29 recommendations, including recommendations that there be a review of the application of the current law and of the systems and processes in place for when a death has occurred. The review also recommended that support should be given for doctors in the coroner’s court.

Prior to the Hamilton review, the issue of gross negligence manslaughter in healthcare had also been considered in the Williams rapid review. The Hamilton review agreed with the recommendation from the Williams review that the GMC should lose their right to appeal any decisions made by the Medical Practitioners Tribunal Service. Both reviews stressed the need for the GMC to work to repair its relationship with doctors. The Williams review made further wide reaching recommendations, including the need for clarification of the threshold for gross negligence manslaughter, the creation of a virtual specialist unit in police forces specialising in these cases and changes to the way in which these cases are referred to the police.

What do Trusts need to know?

Where a death is unexpected or unexplained, it is crucial that there is a swift and effective review of the circumstances of the death, and that referrals are made to the Coroner and/or the police where necessary. As with all investigations, witnesses should provide statements promptly and any evidence should be preserved and reviewed. Support should also be given to the staff involved as it will be a difficult and challenging time for them.

Employers and Trusts should also be aware of employment law requirements when these issues arise. It may be appropriate to consider supported practice, changing duties or even exclusion pending the outcome of investigations in serious cases,

Trusts must work to foster an open, blame-free culture in order to encourage staff to be open and honest from an early stage. One of the major concerns arising from the Dr Bawa-Garba case was that gross negligence manslaughter investigations might discourage open debate. Clinicians are afraid of being blamed for deaths when there may be wider, systemic failures. Both the Williams and Hamilton reviews stressed the importance of healthcare bodies learning from incidents and fostering an open and honest culture in order to prevent future deaths or adverse incidents. It is to be hoped that the recommendations arising from the recent reviews will go some way to restore trust between clinicians and their regulators.

For further information or to discuss any aspect of this article, please contact Lauren Howe.

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Healthline - health and social care matters

22/10/2019