When incapable patients require life saving surgery against their wishes, judges of the Court of Protection are readily available to provide best interests declarations at short notice. However, making such life and death decisions under pressure will never be the preferable approach. As this recent case shows, the court will look disapprovingly on NHS Trusts who leave such applications to the very last minute. All NHS Trusts should ensure their staff understand the correct procedural routes to approach the court and that these are used before a difficult case has become an emergency.
SE’s doctors advised that she required amputation of her leg to save her life. All agreed that she lacked capacity to make decisions about the procedure as a result of schizophrenia. The clinicians attributed her refusal of surgery to her delusional beliefs. All of SE’s three adult children considered that it was in her interests to have the surgery, without which she would likely have died. The judge agreed and she declared that surgery would be in SE’s best interests.
What makes this case noteworthy is that the Court considered that the application had not been properly handled initially. A lack of appropriate legal advice had caused delays in issuing the application, by which time surgery had become an emergency and the case had to be heard in the urgent applications court sitting into the night.The delay had arisen when Trust staff had initially dealt with the matter by way of a safeguarding referral to the Local Authority; it was only at some point during that process they were alerted to the need to issue an application to the Court of Protection, resulting in the application being issued only the day before surgery was booked, and so requiring an emergency hearing.
The applicants had also, initially, overlooked informing and consulting SE’s family members. The judge refused to hear the case until she received assurances that all necessary family members had been properly informed, which meant the case only started after 5pm. The practical consequence was that one of SE’s daughters who had attended the court hearing was unable to see her mother prior to the surgery being carried out.
The case has highlighted how important it is to ensure that timely applications are made, utilising the correct processes.
Mrs Justice Theis, at paragraph 7 of her judgment stated “I am satisfied that these applicants did not take the steps and procedural route they should have done.” She ordered that the Chief Executive of the Trusts write to Mr Justice Hayden (Vice President of the Court of Protection), setting out the concrete changes that had been made as a result of this case. This was to ensure that those on the front line are not without effective legal advice in relation to applications that should be made in a timely way.
Other Trusts and their representatives may be interested in the changes implemented following this case and may wish to consider a review of their procedures. The changes made were:
- To amend the Trust’s Mental Capacity Act Policy. This was amended to provide more detail on the situations where staff may need to make an application to the Court of Protection. The Policy set out who to contact both within and outside of normal working hours to obtain advice, including legal advice.
- The changes and the need for timely escalation were highlighted to staff in the weekly Staff Bulletin.
- Separate briefing sessions on the changes to the Mental Capacity Act Policy were held with teams in the Emergency Department, Acute Medical Unit, Surgical Assessment Unit and Critical Care, as these are the areas most likely to be involved in these applications.
- Contact details for the Trust’s solicitors have been provided to Adult Safeguarding to support timely access to legal advice from external legal advisers if required. The information held by the Clinical Site Team for out of hours contacts has been checked to ensure that this is up to date.
Bridget Dolan QC was instructed by the Official Solicitor.