Following the recent – deeply troubling – case involving Sherwood Forest Hospitals Foundation NHS Trust, Hayden J has had to grapple with a further case in which delay in bringing a case to court has had serious consequences for the person: Cardiff & Vale University Health Board v P  EWCOP 8.
The case concerned a young man aged 17, with a longstanding disability and described as severely autistic. He was unable to communicate either verbally or, for the most part, in any consistently effective way at all. He lived with his parents but he received some respite care, particularly at the weekend, at a specialist establishment for people with learning difficulties. In January 2019, he was given a CT scan under general anaesthetic in order that his dental state could be properly assessed. A plan had been made for him to walk into the clinical area and, if necessary, for restraint to be used. He walked part of the way with his father, who was a mental health nurse, but then refused to go into the clinical room. The Trust’s Strategies and Intervention Team, which managed people facing similar challenges to him and who sometimes exhibit their distress in aggressive behaviour, briefly restrained him on a bed for approximately two minutes in order that venous access could be gained and anaesthetic agents safely administered. His father was able to calm the young man when he was restrained, and on waking he was relaxed and did not require any further restraint.
The examination that was undertaken revealed some tooth decay, but it also revealed that the young man had impacted wisdom teeth. The fact that they are impacted did not mean that they were necessarily painful. They might remain impacted for many years and cause no pain, but sometimes they do, and quite commonly this arises in late teens and early twenties.
However, from around October 2019, and with increasing frequency, the young man was observed by his parents violently to bang his head, sometimes banging his head against walls. As Hayden J observed “[t]he parents, of course, have the opportunity to see their son more than anybody else. Whilst he may not be able to communicate directly, by a whole raft of cues, many of which they will not be aware of, they have become intuitive to his needs. They believed that his behaviour was in response to dental pain.”
In November 2019, the young man was taken to the local A&E by his parents with an obvious bruise to his forehead. They believed that his behaviour was so markedly changed that they feared he had some sort of concussion and may have fractured his skull. As Hayden J observed “[i]t is, to my mind, self-evident that there was an urgent medical emergency that should have been investigated within hours or days, but in fact there has, as yet, been no CT scan at all.” Because there were potentially two pathologies to consider, a variety of disciplines became involved. In December, a multi-disciplinary meeting was convened. The parents were becoming increasingly concerned, however, and had the sense that they were not being listened to sufficiently.
It was clear on the evidence before the court that the young man lacked the capacity to consent to treatment or to understand the various issues involved.
In the circumstances, Hayden J observed that:
7. It might seem, from the above account, that some dental assessment was required quickly and now as long ago as November or early December 2019. Plainly, it was. But the application was only made by the Health Board on 20th February 2020. The proposed inspection and/or treatment is not to take place until early March. For anybody who has had toothache, even delay between now and then looks like an eternity. But this young man, it seems, has been suffering, and significantly so, for nearly five months. This is little short of an outrage. It is indefensible.
8. What is most concerning is that the delay has occurred despite the fact that P is supported by parents who are vigilant to articulate his needs. F, I repeat, is a mental health nurse, and as such is particularly well-placed to act as an advocate on his son’s behalf. P is also surrounded by professionals, who I do not for one moment doubt are committed to his treatment and care. Nonetheless, nothing has happened.
Hayden J first had sight of the case on 20 February, and reconvened the next day:
12. Ms Watson, counsel on behalf of the Health Board, today makes it absolutely clear that, since the case was heard yesterday afternoon, a great deal of work has been done and a great deal of thought given to the circumstances that P now finds himself in. She tells me candidly that when it became necessary to analyse the chronology of the proceedings, the full force of the delay and its impact on P became inescapably obvious to the Cardiff and Vale University Local Health Board. They have made, properly in my view, no attempt at all to evade their responsibility. They offer P and his parents a profound apology, the sincerity of which I have absolutely no cause to question. Today, the Clinical Director of the Dental Hospital has attended at court. He inevitably knew nothing of the case until yesterday. He, too, through counsel, makes no effort to defend the delay. It is indefensible.
13. When Ms Watson drills down into the history of the case, in an attempt to understand why this has occurred, she comes to the very clear conclusion that it has arisen in consequence of “insufficient collaborative cooperation”, to use her phrase, between the various disciplines required to identify P’s best medical interests. In other words, a failure to share information and a failure to work together effectively. The failings here do not arise as a result of lack of resources. Neither are they the result of pressure or volume of responsibility on any individual. It is, sadly, yet again, a situation in which there has been a fundamental failure to communicate effectively by those responsible for P’s care. This message has now been the conclusion of so many reviews, including serious case reviews, that it has become almost trite. There is no point identifying lessons to be learned if they are not, in fact, learned. Sharing information and effective communication is intrinsic to good medical practice. This is true generally but it requires heightened emphasis, if that is possible, in the context of the incapacitous, whose voice can easily and inadvertently go unheard.
For reasons that are not developed in the judgment, it appeared that it was not practically possible to ensure inspection/treatment before March 2020. Amongst the consequences of this, Hayden J was careful to observe was that, as his parents told him, the deterioration in his behaviour responding to his pain:
16. […] has altered, as they put it, P’s “profile”. Their ambition for him is that, at 18 years of age, he might be able to obtain a place in a residential unit, which would provide some important opportunities for him. The relative containability of his behaviour throughout adolescence made that a reasonable prospect. But his parents are now very anxious that P’s present behaviour might create an impression of a more challenging youngster than they believe him to be and cause such units greater anxiety when considering any application on his behalf.
17. It is for that reason that I deliver this ex tempore judgment, a copy of which will be transcribed for P’s parents, so that those who are considering options for P in the future will know that his recent behaviour appears likely to have been triggered by a neglectful failure to address a dental/medical problem. It should not be regarded as a facet of his overall condition. If what I have said here is weakened in consequence of any CT scans or investigations, then it can, of course, be revisited. But the above is the position, as it appears to his parents today and which I consider to be a realistic evaluation.
On the basis of paragraph 17 of Hayden J’s judgment, and the very deliberate use of the term ‘neglectful,’ it would appear – in due course – that a claim could be brought on behalf of P to reflect the harm caused to him by the consequences of the delay. Paragraph 13 of his judgment both crystallises the problem and reflects what comes close to judicial despair as to how to ensure that such situations are not repeated.
Amidst all of this, it may come as a minor point, but it is perhaps rather striking that it appears that it was considered entirely possible in January 2019 by those responsible for P’s case to have carried out a CT scan under general anaethestic (in circumstances including restraint) without the need to go to court.