Stuart Marchant and Nicole Ridgwell consider the question of when a medical intervention can be authorised for an adult who has – but may lose - capacity to consent to care or treatment which could be contrary to the wishes that they expressed when they had capacity.
Deborah Jeremiah considers what can be done to support children and their families with Special Educational Need Disabilities (SEND) and provide assurance that statutory responsibilities are being met.
Toby de Mellow considers the CQC report ‘The State of Health Care and Adult Social Care in England in 2018/2019’ and focuses on mental health services.
Stuart Marchant, Claire Bentley and George Riach consider the practice guidance issued by Mr Justice Hayden, Vice President of the Court of Protection, on the procedure where a decision arises relating to medical treatment and when to bring an application before the Court of Protection.
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Making future decisions about patients whose capacity state is vulnerable: if an adult loses capacity, when can a medical intervention be authorised which is contrary to the wishes the adult expressed when capacitous?
The case of GSTT & SLAM v R  EWCOP 4 explores this question and Hayden J’s answer is that it is possible and appropriate to authorise such intervention in certain circumstances; however, those circumstances must only be of the most exceptional and can only ever be decided on a case by case basis.
This decision follows the practice guidance issued by Hayden J on the correct procedure for a decision arises relating to medical treatment and when that application should be before the Court of Protection.
The case concerned the obstetric treatment of R who, on the date the application was heard, was 39 weeks and six days in to her pregnancy. R has a diagnosis of Bipolar Affective Disorder, characterised by psychotic episodes. She was detained in a psychiatric ward which fell within the jurisdiction of the second applicant (SLAM) and the first applicant (GSTT) is the Trust responsible for R's obstetric care.
All treating clinicians agreed that R had capacity to make decisions as to her ante-natal and obstetric care, but that there was a substantial risk of a deterioration in R's mental health such that she would likely lose capacity during labour. There were risks to her physical health due to various obstetric issues; meaning that she might require an urgent C-section for the safe delivery of her baby but may resist.
It had become evident to the applicants only ten days before that R had stopped taking her anti-psychotic medication. This required a re-evaluation of the risk and a reassessment of the birth plan. The Court noted that there was an avoidable delay in bringing the application, but appreciated that it was not ‘”so starkly” avoidable as it first appeared.
As Hayden J recognised, a capacitous woman who is likely to become incapacitous during the course of labour is relatively unusual but is not unprecedented. The fact that it was not unprecedented did not lessen the severity of the decision: that “the Court was in the entirely invidious position of having to determine applications which have an obviously draconian complexion to them, in circumstances which were far from ideal”.
The situation was further exacerbated by the fact that R was unrepresented as there had been no time to appoint the Official Solicitor (OS). The OS had been asked to attend as ‘Advocate to the Court’, to protect R’s interests but the OS was not representing R.
Hayden J was satisfied that the application was well founded and that the declarations contended for met R's best interests.
On that basis, pursuant to section 15 of the Mental Capacity Act 2005 (MCA) and the inherent jurisdiction of the High Court, it was declared that:
(1) The Respondent has, at the present time, mental capacity to make decisions regarding her obstetric care and the delivery of her baby;
and it is declared pursuant to S.15 MCA in the event that the respondent should come to lack the capacity to make decisions about her obstetric care, and, in any event pursuant to the inherent jurisdiction of the High Court that:
(2) It is lawful for the Applicants to deliver care and treatment to her in accordance with the obstetric care plan annexed to this Order;
(3) To the extent that the arrangements set out in the care plan amount to a deprivation of the Respondent's liberty, this is authorised, providing always that any measures used to facilitate or provide the arrangements shall be the minimum necessary to protect the safety of the Respondent and those involved in her transfer and treatment; and that all reasonable and proportionate steps are taken to minimise distress to the Respondent and to maintain her dignity.
Having made the declaration, Hayden J requested further written submissions from the applicants and the OS; the submissions were to focus on whether the declarations fell properly within the scope of section 15 of the MCA 2005 or fell to be made under the inherent jurisdiction of the High Court.
Anticipatory declarations such as these, he stated, “made relating to the capacitous and which have the effect of authorising intervention and/or deprivation of liberty at some future point where there is unlikely to be recourse to a court (following a subsequent loss of capacity)… should be rooted very securely in law”.
Hayden J’s Findings on Submissions
- As previously declared, the power is to be found under section 15 of the MCA (not section 16, which he agreed would be incompatible with a future-focused Order). Specifically, it is section 15(1)(c) through which it is appropriate to authorise contingent declarations: “There is no need at all to diverge from the plain language of the section. In making a declaration that is contingent upon a person losing capacity in the future, the Court is doing no more than emphasising that the anticipated relief will be lawful when and only when P becomes incapacitous. It is at that stage that the full protective regime of the MCA is activated, not before” (paragraph 36).
- However, the complexity of the situation meant that interactions with R would potentially involve transfer, from the psychiatric unit for obstetric care, which meant that a deprivation of liberty was contemplated.
- In agreement with the applicants, a “deprivation of the liberty of any human being will always and self-evidently require scrutiny and vigilance”.
- Section 15(1)(c) could not be used to authorise a deprivation of liberty, but inherent jurisdiction could. As per the observations of Baker LJ in A Local Authority v BF  EWCA Civ 2962, “The inherent jurisdiction of the High Court for the protection of vulnerable and incapacity adults remains available notwithstanding the implementation of the Mental Capacity Act 2005”.
- The case law upon which the applications and the Court relied emphasised the ‘exceptional’ circumstances of the cases in which contingent declarations should be made. The cases “frequently present issues of medical, moral, legal complexity”. The exceptionality of such decisions therefore must not be made “vulnerable to being corroded”
- Having acknowledged that the delay in making the application in this matter was not as stark as he first thought, Hayden J took the opportunity to emphasise that careful planning and the avoidance of delay are “intrinsic to every case in the Court of Protection”.
- Finally, Hayden J underlined the exceptional circumstances of the case before him and the reason why he was able to exercise his judgment to allow the contingent declaration in this case:
“The inviolability of a woman's body is a facet of her fundamental freedom but so too is her right to take decisions relating to her unborn child based on access, at all stages, to the complete range of options available to her. Loss of capacity in the process of labour may crucially inhibit a woman's entitlement to make choices. At this stage the Court is required to step in to protect her, recognising that this will always require a complex, delicate and sensitive evaluation of a range of her competing rights and interests. The outcome will always depend on the particular circumstances of the individual case”.
Bevan Brittan represented SLAM in this case and is able to offer practical legal advice to allow timely decisions to be made about whether and when applications need to be made to the Court of Protection. Such advice can be crucial to safeguarding the interests of the patient and treating hospital.
The funding gap for children and young people with Special Educational Needs and Disabilities (SEND) is estimated to be £800 million this year. There are 1.3 million children with SEND. Not all these children have an Education and Health Care Plan (EHCP) and so perhaps it is no surprise that the increase for requests for EHCP’s is set to continue and is estimated to have increased by 35 % in recent years.
Changes introduced by the Children and Families Act 2014
EHCP’s were brought into being by the Children and Families Act 2014 (CFA) and is the key mechanism not only to assess and identify needs multi agency but also to set out in clear terms what services and support need to be provided and by whom. Therefore the EHCP effectively sets out the statutory provision across health, education and social care. While parents of those children with SEND are increasingly requesting EHCP’s, the quality of EHCP’s varies greatly. It is fair to say that there is some way to go in some areas to achieve the sort of engagement across the public bodies that the CFA envisaged in terms of partnership working and wrapping around the child. This in itself creates some contention between health, social care and education with differing interpretations around which body should be funding what and where statutory responsibilities lie. This is particularly acute in education where the debate as to how much health related care school staff can provide continues to risk destabilising some children’s established school placements.
One of the other substantial changes that the CFA introduced was the power of local authorities to direct that schools admit a child if the school is named in an EHCP. This relates to parental preference being expressed and for a child with SEND, a parent will often opt or seek a specialist school place rather than mainstream school. This seems to fly in the face of inclusion for mainstream schools. This view is echoed by the Association of Directors of Children’s Services in that they state, growing numbers of learners are being moved out of mainstream schools into specialist or alternative provision, in “a worrying trend that risks two decades of progress on inclusion”
National Audit Office Report
The National Audit Office ( NAO) report called “Support for pupils with special educational needs and disabilities in England” published in September 2019 scrutinising funding on SEND makes for very sober reading for those of us who work or advise in this field . Uncompromising in nature and published ahead of the Government’s announcement of a major review into support available for children with SEND, the report identified that the demand for special school places is growing because the system incentivises mainstream schools to be less inclusive. Local Authorities are responding, says the NAO report by transferring budgets for mainstream schooling to support high needs children in special schools and also using reserves. However this should not be an either /or.
The reference to the report’s systemic and wider funding gap leaves local authorities who have statutory responsibilities for education and children’s social care and health bodies who have statutory responsibility for health care needs in a precarious position in a funding crisis which represents a perfect storm across the public bodies.
Last month the Local Government and Social Care Ombudsman strongly criticised the London Borough of Richmond-upon-Thames council’s children’s service provider, Achieving for Children, for not effectively supporting children with Special Educational Needs and Disabilities. They found that children were missing out on support and education in three separate cases which gave them concern about systemic failures between the council and its provider. Richmond has agreed to carry out a full audit of its education provision and pay £17,500 to three families referred to by the Ombudsman.
Support for children with SEND
With increases in cases reaching tribunals what can be done to support children and their families with SEND and provide assurance that statutory responsibilities are being met?
- Work with parents early and in an open transparent manner on EHCP’s,
- Have developed systems in place to input early into the EHCP process effectively and in a comprehensive manner ( be this health, education or social care aspects)
- Promote the ability for mainstreams to be inclusive and meet the needs of children with SEND
- Be clear and cohesive on what schools can realistically offer children with high and complex needs. If this involves training to education staff this should be high quality and backed up with sound supervision and support for the school.
- If there is a dispute between organisations utilise dispute protocols and mediation early to seek to avoid the need for a tribunal.
Our children’s law team advises across health, local authority and education bodies. For further information contact Deborah Jeremiah.
In October 2019, the CQC published its report The State of Health Care and Adult Social Care in England 2018/19. We have focused our review on mental health services; accessing such services has remained a problem for many patients throughout 2018/19.
The CQC continues to have concerns about the safety of services in mental health care; more than a third of NHS and independent services were rated as “requires improvement” and “inadequate” for the question of “are services safe?”. In addition, 30% of NHS core services were rated as “requires improvement” and 4% as “inadequate”; 33% of independent hospitals were rated as “requires improvement” and 5% as “inadequate”.
It has been indicated that there has been a general improvement in the quality of community mental health services but the quality of inpatient services has worsened. This was visible mainly in acute wards for adults of working age as 6% of these services were rated as “inadequate”, compared to 2% last year, and 38% of services were still rated as “requires improvement”. In wards for people with autism or learning disability, 4% were rated as “inadequate”, compared to 1% last year.
The CQC has particular concerns about access to inpatient care and that the community mental health provision is not compensating for the reduction in inpatient beds. Its report has highlighted, however, that there are national programmes in place, including the NHS Long Term Plan and Independent Review of the Mental Health Act, which aim to improve mental health services.
Access to mental health services
The NHS Long Term Plan has been cited as a catalyst for improvements being made to mental health care, but the CQC’s report has identified a number of “pinch points” which are currently affecting the mental health system.
- “The availability of community services for people with autism and/or a learning disability”
Despite NHS England’s plan in 2015 to develop community services and close inpatient beds for people with autism and/or learning disabilities, the CQC has indicated that many people are still placed in hospital far from their home due to a lack of local and intensive community services. It was noted that many young people being cared on a learning disability or mental health ward in segregation were children who are not accessing health, education and care services. There was also a shortage of specialist beds resulting in people being placed on non-specialist wards.
- “People not getting access to the community or inpatient care they need at the time they need it”
CQC staff have expressed concern that community provision isn’t increasing fast enough to compensate for the reduction in inpatient beds. The CQC was made aware by coroners of seven deaths between June 2018 and March 2019 of people who were assessed as requiring admission to hospital but were unable to access a mental health bed. CQC has written to NHS England to alert it to this finding and the following concerns:
- That people were being held for a prolonged period in a health-based place of safety or a mental health decision unit. The CQC find it unacceptable that people in a state of distress were held for days in a facility that has no beds and which provides no privacy;
- The unavailability of mental health beds which is cited as a common reason for patients waiting longer than 12 hours from the decision to admit, to transfer to an inpatient bed.
- “Difficulties accessing CAMHS”
Young people continued to experience difficulties in accessing CAMHS community services throughout 2018/19. It is highlighted that 21% of community mental health services for children and young people are rated as “requires improvement” and 10% as “inadequate” for the question “are services responsive?”. Long waiting lists for children and young people to access services has been identified once more.
The CQC praises the use of new technologies, such as online therapies and apps, for enabling children to access CAMHS. However, issues with access are not only about lack of investment but also the fragmentation of organisations responsible for providing and commissioning care.
Impact of workforce challenges
It is noted that the total number of RMNs has continued to fall, with 2% fewer RMNs in April 2019 than in April 2014. Over the same period, there has, however, been a national rise in the number of community RMNs. This reflects the policy move away from hospital-based care but frequent problems related to staffing were still highlighted during CQC inspections. CQC staff have expressed concern that they have seen staff shortages becoming more pronounced in local community services which has affected patients’ access to care.
The CQC holds a serious concern about the quality and safety of inpatient care and the impact that workforce challenges place on it; this remains the CQC’s greatest concern. Since October 2018, 14 independent mental health hospitals who care for inpatients with autism and/or learning disabilities were rated as ‘inadequate’. A common problem in these hospitals was staffing.
Local services working together
The CQC has urged local service leaders to deliver care in collaborative ways to ensure that people get the support they require. The South London Partnership has been championed as having had a positive impact for service users and a template for a working partnership. It is noted that ‘where local health and care organisations work together, jointly identifying improvements that make sure people have the right support, care and treatment for mental health conditions, we have seen more effective systems and better outcomes’.
It is of concern that many of the highlighted issues are not new ones; established problems appear to have been aggravated.
Practice guidance has been issued by Mr Justice Hayden, Vice President of the Court of Protection, on the procedure where a decision arises relating to medical treatment and when to bring an application before the Court of Protection. This guidance is to be followed until it is superseded by the revised Mental Capacity Act Code which is currently being reviewed.
No application needed to the Court of Protection
When making a medical treatment decision in relation to those lacking decision making capacity, medical professionals need to refer to Section 5 Mental Capacity Act 2005 (MCA 2005). This allows them to carry out a relevant act where they reasonably believe that the person in question lacks the necessary decision-making capacity and that the act in question is in the person’s best interests. A relevant act may include withholding or withdrawing treatment.
Defining certain medical treatments as “serious” indicates a need for special care and attention to the decision-making process surrounding them including the appointment of an Independent Mental Capacity Advocate in appropriate circumstances. The seriousness of treatment is not by itself determinative when considering an application to the Court of Protection.
If the provisions of the MCA 2005, relevant professional guidance and guidance in the Code of Practice are followed; and, if those in the decision making process are in agreement as to the decision making capacity of the individual in question and what is in their best interests, then medical treatment may be provided, withdrawn or withheld without application to the court.
When consideration should be given to bringing an application to the Court of Protection
It is important to consider whether any relevant issues can be resolved without the need for proceedings. However it should be borne in mind that delay may be harmful to the person’s welfare and if resolution cannot be achieved proceedings should be issued.
Consideration must always be given to whether an application to the Court of Protection is required if:-
- The medical decision is finely balanced, or
- There is a difference of medical opinion, or
- There is a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or
- There is a potential conflict of interest in the part of those involved in the decision making process.
It is highly probable that an application to the Court of Protection is appropriate if any of the concerns in the list above exist. Note this list is not exhaustive.
When an application must be made to the Court of Protection
An application to the Court of Protection must be made if any of the situations in the list above arise and the decision relates to the provision of life sustaining treatment including the withdrawal or withholding of clinically assisted nutrition and hydration.
The guidance says that if the treatment is to be carried out using a degree of force to restrain the person which goes beyond sections 5 and 6 MCA 2005 resulting in a deprivation of liberty then an application to the Court will be required. However the guidance is silent on whether either a standard authorisation or the Mental Health Act can be used to deprive a patient of their liberty in cases where they might appear to apply.
When it is highly probable that an application to the Court of Protection should be made
If the treatment is not about the provision of life sustaining treatment but involves serious interference with the person’s rights under the ECHR, it is highly probable that it should be appropriate to apply to the Court, so that it may facilitate a comprehensive analysis of capacity and best interests with the individual having the benefit of legal representation and independent expert advice. This will be so even where there is agreement between all those with an interest in the person’s welfare. The sort of cases that involve serious interference are (but not limited to):-
- Where a medical procedure or treatment is for the primary purpose of sterilisation;
- Where a medical procedure is proposed to be performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cells, tissue or bodily fluid to another person;
- A procedure for the covert insertion of a contraceptive device or other means of contraception;
- Where it is proposed that an experimental or innovative treatment to be carried out;
- A case involving a significant ethical question in an untested or controversial area of medicine.
Bringing an application to the Court of Protection
Those providing or commissioning clinical and caring services should approach the Court of Protection in any case in which they assess it as right to do so.
It is normally the case that in cases involving medical treatment the organisation responsible for commissioning or providing clinical or caring services to the person will be the applicant. The person would normally be joined as a party and the Official Solicitor will usually consent to act if invited to do so by the Court of Protection.
The Court of Protection will consider whether anyone not already a party should be joined as a party to the proceedings. It will also consider how the press should be notified of the application, and whether such notification should be accompanied by an agreed statement of facts and issues. The Court of Protection will have particular regard to:-
- The seriousness of the consequences of the proposed treatment decision(s);
- The seriousness of the interference with the ECHR rights of the person.
If an urgent hearing is necessary, arrangements should be taken to enable family members to be able to fully participate in the hearing. The Official Solicitor’s office should be alerted to the application so that they are able to respond promptly. The Urgent Applications Judge and the Clerk of the Rules should be alerted at the earliest opportunity when an application appears likely.
The application should be accompanied with: draft court orders; any statements in support setting out relevant medical detail; any IMCA or advocate reports relating to the treatment decision; and in some circumstances treating clinician(s) may be required to give live evidence for the Court.
In an urgent hearing, the Court will take every opportunity it can to ensure that the person is represented before granting substantive relief. Only in a truly exceptional case would the Court grant substantive relief without representation. The Court will otherwise only grant such interim relief as is urgently required to secure the person’s interests.
We are expecting the Court to issue further guidance soon on when applications can be made to the Court of Protection and/or Inherent Jurisdiction of the High Court to authorise care plans based on the high likelihood that a patient who presently has capacity will lose it during the course of providing care. There have been a small number of recent cases where the Court of Protection has issued contingent declarations of best interests, particularly in obstetric cases, where necessary deprivations of liberty have also been anticipated. However, the use of such powers is likely to be limited to truly exceptional cases and late planning will not be tolerated.
How can we help?
Cases that involve serious medical treatment for a person who lacks capacity are sensitive matters. It is crucial that providers and commissioners of clinical and caring services receive the right, informed legal advice.
We have extensive experience in this area and are on hand, around the clock, to provide urgent legal advice ranging from screening as to whether an application to Court is necessary, preparing witnesses and evidence and providing legal representation at any hearings.
Stuart Marchant, Claire Bentley and George Riach