Alex RKBarnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35 concerned the health and welfare of a 60 year old man, Mr K, and in particular the relief necessary to protect him from his resistance to the treatment of his chronic bilateral venous leg ulcers. He was subject to a standard authorisation in a care home following five years spent in a mental health facility in which he was not detained but which he refused to leave. He suffered from persistent delusions and paranoia and refused to engage with professionals. He had a long-standing heart condition which made any treatment against his will extremely difficult to carry out. Previous orders made by the Vice President of the Court of Protection, Theis J, had authorised his successful conveyance from hospital to a care home with provision for physical and chemical restraint – neither of which was in fact required. He had longstanding leg ulcers which he had previously treated himself. He refused to allow staff or other medical professionals to assist him or assess them.
In light of the evolving medical evidence (from both treating and independent clinicians), and evolving care plans, produced at considerable speed – and by clinicians during the course of the junior doctors’ strike in England – John McKendrick KC summarised the dilemma faced by Mr K at the point the court had to decide, at speed, what to do:
62 […]. On the one hand, he needs an urgent assessment of, and treatment for, his chronic bilateral venous leg ulcers. Without this, the evidence suggests, an infection may become sufficiently serious that amputation of both legs below the knee will be indicated. He remains resistant to professional assessment of his ulcers at B Home. He remains resistant to being returned to hospital for investigations and treatment. As far back as 26 June 2023 serious concerns were raised in respect of the urgent necessity of treatment of the ulcers. A member of staff noted they could see bone appear in the wound. After a short period of time in Mr Ks’ room, the manager of B Home rushed out to vomit, over-powered by the smell of the wounds. Urgent safeguarding concerns were raised at round table meeting in June 2023.
63, Mr R, the Manager at B Home has provided an alarming level of detail of concern. He states that in his opinion Mr K’s wounds are severely infected and malodorous. He says “the ankle bone is visible and seriously infects skin is hanging down his leg”. He thinks the wounds have not been dressed since 17 July 2023. He states that Mr K screams in pain, mainly at night. Notwithstanding this, Mr K refused assistance from B Home staff and from tissue viability nurses and will “never allow anybody to touch his leg and will retaliate with force if someone tries “. Paramedics have been called in May and June but Mr K refused to engage.
64. On the other hand, as a result of his documented cardiac problems, the evidence from the cardiologists and experts in anaesthesia suggests, for now at least, that the use of chemical and physical restraint poses significant risks to Mr K if conveyed to hospital against his will. Further, should he remain resistant to treatment when in hospital and therefore require longer term sedation, the risks of prolonged chemical sedation are significant.
65. Even if he were to be conveyed to hospital and underwent the necessary investigations set out above in the vascular evidence, there is a reasonable likelihood that any procedure which involves a general anaesthetic would be contrary to his best interests because of the risks it poses to his cardiac ill-health and in any event may not be an option and clinicians may not provide it.
66. This is the stark background that confronts the court. Mr K is in a parlous state.
Proceeding in stages to seek to resolve the dilemma, the first question was as to Mr K’s capacity. John McKendrick KC noted at paragraph 57 that
Section 48 of the 2005 Act has most recently been considered in the cases of: (i) Local Authority v LD [2023] EWHC 1258 (Fam) (Mostyn J) and (ii) DP v London Borough of Hillingdon [2020] EWCOP 45 (Hayden J). I take from these authorities that the language of section 48 needs no gloss and that the court need not be satisfied, on the evidence available to it, that the person lacks capacity on the balance of probabilities, but rather a lower test is applied. Belief is different from proof. Section 48 requires: ‘reason to believe that P lacks capacity.’ Section 2 requires: ‘whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities’. That being said in a case of this nature, where medical treatment is being considered which the patient does not consent to, the court must be satisfied there is evidence to provide a proper basis to reasonably believe the patient lacks capacity in respect of the medical decision.
On the basis of the material before him, in a situation where no party sought to persuade him that Mr K had capacity in respect of the treatment of his ulcers, John McKendrick KC was “entirely satisfied” (paragraph 68) that there was reason to believe that Mr K lacked the material capacity. He made a declaration to this effect under s.48. Upon receipt of the draft judgment, Counsel for the Official Solicitor questioned whether he should make such declarations in light of the decision of Hayden J in DP v LB Hillingdon in which the former Vice-President had questioned (in the context of s.21A proceedings) whether there was such a power, as opposed to simply making a judicial ‘finding’. John McKendrick KC amplified his reasoning accordingly, from the starting point that it was desirable that the Court retains the power to make interim declarations in respect of capacity (paragraph 102):
[…] A determination that there is reason to believe P lacks capacity in relation to the matter, is an important steps which establishes the court has jurisdiction to make best interests orders in respect of P, if additionally the section 48 (c) test of ‘without delay’ is met. The declaration should be precisely worded to make clear the matters in respect of which the court has jurisdiction. A finding is a less precise basis upon which to exercise the court’s jurisdiction.
103. Therefore I add to the [relevant paragraph] that I am making a section 48 order and an interim declaration pursuant to section 47 of the 2005 Act and COP Rule 10.10. (1) (b).
104. I have not heard argument on this narrow matter, as there is a pressing need to hand down judgment and approve the orders to permit the assessment at B Home to take place tomorrow, so if I am wrong in respect of this analysis, I also apply the learning of paragraph 40 of DP v London Borough of Hillingdon and make a finding in the same terms as the interim declaration. Through either route, as there can be no further delay, the best interests orders above are made for Mr K, who needs the Court’s protection.
As regards best interests, and whilst the last paragraph above gives a spoiler, John McKendrick outlined how there were (at least) four options: await further evidence; provide for an order to permit urgent investigation, assessment and interim treatment at B Home; convey him to hospital; and persuade Mr K to attend hospital. The first option was not viable. The third was, at this stage, too risky, but it was finely balanced, given that:
73. […] on the evidence of the vascular surgeons, that some form of inpatient investigations will be needed, for scans etc to assess the damage to Mr K’s venous and arterial system and to assess whether or not his wounds are capable of healing. Option three is not currently in his best interests, but I anticipate that the evidence which emerges from the assessment to take place this week (see below) and the evidence from the two experts instructed by the Official Solicitor, will result in the court confronting the acutely difficult dilemma of balancing the risks to Mr K’s physical and psychological health of non-admission to hospital and therefore limited treatment at B Home for his chronic bilateral venous leg ulcers, against the cardiac risks of chemical and physical restraint in, or being conveyed, to hospital. This will be a difficult balancing act and will require clear, expert evidence to assist the court to undertake the balancing exercise in Mr K’s best interests.
The fourth option was potentially viable, given that there was a different hospital under the management of a different Trust Mr K had previously spoken very highly of. This was an option that had to be explored at speed, but if it was not going to be possible, John McKendrick KC found himself in a position where he had to endorse option 3, for assessment and treatment to take place at the care home, including with the use of chemical and physical restraint as a last resort, prior to a further hearing to consider the next steps.
Comment
The dilemma faced by all concerned was acute, and could not be avoided – although, as so often, it is difficult not to want to ask as to all the points along the way at which other options might have presented themselves for Mr K and those concerned with his welfare. John McKendrick KC’s careful examination of the position that now prevailed, and – in particular – his concern to ensure that each step on the restriction ladder would be as carefully tested as time would allow, is a very useful ‘worked example’ of how to proceed in thinking through such dilemmas.
Of wider interest, at least to procedural enthusiasts, is the judge’s crisp analysis of the vexed issue of s.48. His summary of the threshold and of the ability of the court to make interim declarations would, I would suggest, draws a line under what had become an unnecessarily complicated debate. And his observation that ‘belief is different to proof’ is clearly of relevance also in relation to those applying s.5 MCA outside the court room setting, who are held to the standard of a ‘reasonable belief’ in the person’s lack of capacity to consent to the relevant act(s) of care and treatment.
