Tag: Capacity

Manchester University NHS Foundation trust v Y [2023] EWCOP 51

Tanya ForanLeave a comment

This case involved capacity and the refusal of treatment. It was necessary for the Court to consider P’s independence and his best interests when making a decision.

Following a long history of schizophrenia, P sustained a severe injury and was reluctant to undergo treatment.

Recently, an application was made by the NHS Trust to assess whether P held the capacity to consent to surgery and if he lacks capacity in this matter, to consider whether the proposed surgery was in his best interests.

Background:

By way of background, P is a 42-year-old male who has been diagnosed with Paranoid Schizophrenia. On 27 October 2023, P was found unresponsive in the community; He had sustained multiple injuries and suffered from a seizure. Following this, the P was admitted to his local emergency department where it was determined that P had fractured his left humeral head and dislocated his left shoulder.

P had recently switched his medication, which was used to manage his schizophrenia, from clozapine to olanzapine, which may have deteriorated his condition. Some of the side effects of olanzapine include depression, unusual behaviour and restlessness; it is suggested that this could explain P’s deviant behaviour, such as hostility towards staff.

Paranoid Schizophrenia gives rise to irrational beliefs and delusions which impact the way in which a person interprets their surroundings. As P was diagnosed with Paranoid Schizophrenia, he experiences delusions, which lead him to believe that surgery was unnecessary as it would not prevent future pain. P also believed that he was unable to lose function in his arm and therefore, treatment was not required.

Legal Background:

Dr F is a consultant liaison psychiatrist who met with P on 9 November 2023 to conduct a capacity assessment. The aim of the capacity assessment was to determine whether P held capacity to consent to surgery.

A variety of concerns were raised by Dr F regarding the treatment of P’s schizophrenia; P had not attended follow-up appointments with his community group and there were concerns that he had not taken his antipsychotic medication. Following P’s admission to hospital, he met with the mental health team who identified that since October 2021, P’s condition had deteriorated severely. It was clear that P was unaware of his diagnosis as he declined medication for his paranoid schizophrenia; P also denied any mental ill-health. Therefore, Dr F concluded that P lacked the capacity to refuse the surgery he required, because of his delusions, he was unable to believe the medical rational.

Mr D, a consultant orthopaedic surgeon, described the surgery as the ‘best treatment’ for P’s consistent shoulder pain. Mr D also determined that P did not hold the capacity to refuse surgery. P’s brother and father supported this conclusion by advising Mr D that if P held capacity, he would want to have the surgery.

As P lacked the capacity to comprehend the surgery he required, he was unable to make a decision within the means of Section 3 of the Mental Capacity Act 2005 and subsequently, was unable to provide his consent, or refusal, to the surgery. He therefore lacked capacity in respect of the relevant matter, the giving of his consent for shoulder surgery. Thereafter, the NHS Trust sought a declaration that it was lawful to complete surgery on P’s shoulder and restore function to his arm.

Conclusion:

The Court of Protection ruled the application in favour of the NHS Trust. Despite all the practicable steps taken to assist P in making a capacitous decision, they were unsuccessful as P was unable to assess the benefits and the risks of the surgery he required.  

Subsequently, an Order dated 14 November 2023 was sought declaring that it was lawful to conduct the surgical procedure because it was within the P’s best interests.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Case law surrounding fluctuating capacity – Liverpool City Council v CMW (2021)

Tanya ForanLeave a comment

The issue of fluctuating and issue specific capacity was considered in this recent case.

The matter related to whether a young woman had the capacity to make decisions in specific areas including the conduct of proceedings, the management of her affairs, her care and residence, her contact with others, the use of social media including the internet and whether she could engage in sexual relations.

P was an 18-year-old woman with a troubled background including a recent suicide attempt and had been the subject of a Care Order from 13th May 2008. At the time of the hearing, she resided in supported living accommodation and was supervised by the Local Authority. She was subjected to restrictions as to whom she was able to contact following a Care Order in 2008 and a series of interim COP orders. P was diagnosed with ADHD, foetal alcohol spectrum disorder and specific difficulties relating to cognition and communication.

The Court was provided with two written reports from Dr Angela Rippon, a consultant psychiatrist with considerable experience and expertise and written evidence from Social Services and the Official Solicitor’s representative’s notes of conversations with held with P. The expert considered that P’s expressive language was quite good but her receptive and processing skills were only those of a child aged 7 to 9. It was held that she did not have a learning disability but that she had what Dr Rippon described as a functional disorder.

The Court was satisfied that the medical evidence showed that the functioning of P’s mind was impaired and that she lacked the capacity to conduct proceedings and manage her own affairs as she could not understand the relevant issues that need to be weighed to make decisions in these matters. The Court also found that she lacked the capacity to make decisions relating to her residence, care, and her contact with others because “she seriously overestimates her own ability to keep herself safe and to control her life and seriously underestimates the consequences for her welfare of independence”. The Court also found that she did not understand the support that she needed or why she needed it and was concerned with what would happen if she did not have that support or refused it.

It was also held by the Court that P’s potential capacity would fluctuate depending on the extent to which she was either calm or distressed and this would need to be considered in future years, as there were grounds for improvement. The Court concluded that although potential capacity did fluctuate, even at her calmest, P did not achieve a level of functioning that would amount to having capacity in relation particularly to residence, care and contact but that she had the capacity to deal with social media, the internet, and engage in sexual relations.

A best interests hearing was scheduled by the Court for the areas in which P lacked capacity and authorised the continuation of the Local Authority’s care plan in the interim.

The full judgment can be found here –https://www.bailii.org/ew/cases/EWCOP/2021/50.html

For more information please contact Tanya Foran by email at Tanya.Foran@clarionsolicitors.com.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

Does P have litigation capacity?

maidiedeightonLeave a comment

The issue of whether P had litigation capacity was considered in the recent case of P, Re [2021] EWCOP 27.

P, a 60 year old woman, has diabetes, paranoid schizophrenia and HIV. A hearing was held to ascertain whether she had litigation capacity after proceedings were brought by an NHS Trust on 28 January 2021. An Application was made by the NHS Trust, as P had refused to take her medication prescribed to treat her HIV since 2018. P suffers with fixed delusional beliefs and ongoing hallucinations, resulting in her hearing God telling her not to take the medication, and her also seeing snakes arise from her HIV medication.

The NHS Trust sought orders and declarations that P lacked the capacity to decide whether or not to take the medication and explained that it was in her best interests to take the medication and that therefore she should be made to do so.

In a capacity assessment in December 2020, P’s consultant psychiatrist concluded that P had litigation capacity, however, did not have subject matter capacity.

Following a hearing in February 2021, an Order was made confirming that it was in P’s best interests for her to take the daily oral medication, however it had no effect and P still refused to take the HIV medication.

In March 2021, this changed as following a capacity assessment, P’s care coordinator concluded that she no longer had litigation capacity. The consultant psychiatrist was asked to undertake a further assessment and agreed that P now lacked litigation capacity.

The matter was reviewed again on 28 April 2021. At the hearing, the question was whether P had litigation capacity to conduct the proceedings, and this was not an issue. It was concluded that P did not in fact have litigation capacity and that the decision by the consultant psychiatric on subject-matter capacity, should have led to a decision made in respect of the capacity to conduct litigation about that very subject matter. The Judge confirmed that he disagreed with the initial assessment undertaken by the consultant psychiatrist, and the finding that P had capacity to conduct the litigation. Following this decision, the Official Solicitor agreed to act as Litigation Friend for P in the ongoing proceedings.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at COPCosts@clarionsolicitors.com.

Does P have capacity to make decisions as to his care and residence?

Ella WilkinsonLeave a comment

In the recent case of KG (Capacity) [2021] EWCOP 30, it was necessary for the Court to determine whether P had capacity to make decisions as to his future care provisions and where he should reside.

By way of background, P is a 68 year old man, who has been an inpatient at a hospital since April 2016. He has been fit for discharge for around two years, however is very reluctant and resistant to leaving the hospital.

An application was made under S21a Mental Capacity Act (2005) in challenge to the DOLS authorisation in place, and the Court’s input was sought as to whether P had the required capacity to make decisions regarding his residence and care. The local authority and NHS Clinical Commissioning Group were in agreement that P should leave the hospital, and move to a specialist mental health residential placement.  

It was decided that whilst P was able to understand issues surrounding his care and residence, and could articulate objections to the proposals made, he was not able to retain abstract information in respect of his potential care and residence needs in the future, and could not weigh up the information relating to the decisions to be made.

As such, the conclusion was that the Court of Protection would continue to be involved in making best interests plans for P, and that the local authority and NHS Clinical Commissioning Group should continue to investigate options for residential placements for P.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com

To what extent should the Court consider the Protected Party’s capacity (and wishes) to consent to sexual relations and contraception?

Stephanie KayeLeave a comment

The Protected Party is a young woman with learning disabilities. She previously lived with her family but took part in a number of social and community activities. Concerns were raised, by reason, of her learning difficulties. She was vulnerable to sexual exploitation, pregnancy and sexually transmitted diseases. There is evidence that she was sexually assaulted, and it was reported that the police expressed concern that the Protected Party should not be unsupervised as she appeared to be a target for sexual exploitation.

The Protected Party has two children, who are in the care of her family. A few years ago, an application was made to the court for an order that the Protected Party be sterilised. This application was aborted and the decision was made to consider a long term method of contraception instead. The other main issue was the concerns regarding the Protected Party’s protection against sexual exploitation.

The expert evidence of a consultant psychiatrist was that the Protected Party lacked mental capacity to consent to sexual relations, to consent to contraceptive treatment and to litigate. It was also recommended that the Protected Party should be supervised at all times when in the presence of sexually active men. She received further education about sexual matters and the Protected Party was to undergo the insertion under general anaesthetic of a copper inter-uterine device (IUD). It was advised that the Protected Party would be sedated, and the IUD would be inserted without her knowledge. This contraception would last for 10 years.

During a lengthy hearing in 2012, Parker J made an order in which, having declared that the Protected Party lacked capacity to litigate and to make decisions with regard to contraceptive treatment, she further declared that it was lawful for the Protected Party (with or without her agreement) to undergo the insertion of a copper coil IUD, to receive a Depo-Provera contraceptive injection, to undergo a full sexual health screen, and to be subject to proportionate restraint if necessary, including sedation. Following the hearing, the Protected Party underwent the operation for the insertion of the IUD. No reasoned judgment was given at the hearing in 2012 and, in the event, no further hearing took place for several years.

In 2016, the Local Authority made an application to restore the proceedings, to revisit the question of the Protected Party’s capacity to engage in sexual relations. The proceedings were to assess and evaluate the clinical risks to the Protected Party’s health presented to her by any further pregnancy; to revisit the Protected Party’s capacity to consent to contraceptive treatment; to re-evaluate the options for Protected Party’s contraceptive treatment in view of the fact that the IUD inserted in 2012 has a life of approximately ten years; to reassess the best interests decision not to inform her of the fact of the insertion of the IUD in the light of any improvement of her understanding; and to authorise her Deprivation of her Liberty at her placement.

Following the preparation of a report on future care support by the CHT, it was agreed that the IUD should remain in situ until the end of its natural life. A statement from the social worker set out four options:

(1) option A(i) – the IUD remains in place, the Protected Party is not informed of its existence, and care and supervision remains at its current level;

(2) option A (ii) – the IUD remains in place, the Protected Party is not informed of its existence, but the level of care and supervision is reduced;

(3) option B – the IUD is removed without informing the Protected Party and the risk of sexual exploitation is managed “through social means” with the current level of care and supervision;

(4) option C – the IUD remains in place and the Protected Party is informed of this.

Having analysed the benefits and disadvantages of these options, the social worker decided option 2 was in the Protected Party’s best interests.

At the hearing in 2017, the three principal issues between the parties were as follows:

(1) Does the Protected Party have capacity to consent to sexual relations?

(2) If she does, what steps should be authorised to facilitate the relationship between the Protected Party and her boyfriend, or between her and any other person with whom she wished to have a sexual relationship?

(3) Is the proposed relaxation in supervision in her best interests? In addition, however, it was thought appropriate for the court to review wider issues concerning her treatment, including the question of whether it should continue to be covert or whether the Protected Party should be informed about it.

In addition, however, it was thought appropriate for the court to review wider issues concerning her treatment, including the question of whether it should continue to be covert or whether the Protected Party should be informed about it. As there remain a number of details within the draft order which the parties have been unable to agree, it was necessary for the judge to make an order outlining the best interests of the Protected Party in relation to her capacity – general principles, capacity other than sexual relations, her capacity to consent to sexual relations, contraception, covert treatment and her sexual relationships and supervision.

In this case, there are a number of arguments against retaining the IUD. It is a clear infringement of the Protected Party’s human rights and freedom. Furthermore, this infringement has been brought about without her knowledge and without providing her with any opportunity to express her wishes and feelings. In her oral evidence, the Care Agency manager said that she thought that the Protected Party would not want to keep the IUD if asked. Secondly, although the Protected has not been expressly asked about her wishes and feelings concerning contraception, she has consistently said that she does not want to have a baby at this stage. It was necessary to consider the psychological harm that the Protected Party may encounter if; the IUD was removed and she became pregnant again or if the IUD was removed without sedation. In this instance, it was decided that it is in the Protected Party’s best interests for the IUD to remain in place until the end of its normal ten-year span. At that point, further careful consideration will have to be given as to what contraceptive treatment.

It was directed for the level of sexual supervision of the Protected Party and her boyfriend should be relaxed slightly and reviewed at a further hearing once this has been considered in more depth. Finally, the provisions of the order relating to the IUD plainly involve a Deprivation of Liberty. A clause was included within the order that such a deprivation is lawful.

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com