UK: Providing Or Withholding Medical Treatment To Patients Who Lack Capacity – When And How Do I Apply?

The Judgement of Mrs Justice Theis in the matter of Sandwell and West Birmingham Hospitals NHS Trust v CD, EF, AB, NHS Sandwell and West Birmingham CCG [2014] EWCOP 23 gave some practical advice on applications to the Court of Protection and in particular gave her thoughts on steps that should be taken before any application and on the issue of timing.

This matter concerned an application by Sandwell and West Birmingham NHS Trust ("the Trust") seeking declarations as to AB's capacity to make decisions about serious medical treatment and as to her best interests in respect of whether she should receive life sustaining treatment should such treatment become necessary. AB, a 20 year old patient who suffered from a number of medical conditions including severe learning disability and cerebral palsy resulting in very severe disability, lacked capacity to make these decisions within the meaning of the Mental Capacity Act 2005. Following her admission to the intensive care unit with pneumonia, the Trust issued an application for a declaration not to treat her because AB's treating medical team did not consider that it would be in her best interests to receive (i)invasive ventilation, (ii)cardio pulmonary resuscitation, or (iii)inotropes and renal support therapy should her condition deteriorate.

The Application was initially made by the Trust late on a Friday afternoon when the only information available to the Judge was the application, some medical notes and a two page document from the joint speciality lead in critical care medicine at the Trust. Counsel for the Trust was present but AB's parents had no representation at the hearing. An appointment had been made with a solicitor to discuss eligibility for public funding the following Monday. In the meantime, AB's mother attended the hearing by telephone while at the hospital. Further, the Official Solicitor was not in attendance as, according to the Trust, the Official Solicitor had indicated that he would need an Order from the Court before he could become involved.

The Judge, Mrs Justice Theis, considered that AB needed her own representation and needed to be joined as a party. She therefore contacted the Official Solicitor who arranged for Counsel to attend when the hearing was re-commenced later that evening. It was not possible to secure representation for the parents in the short time available. By this time, as AB's condition was not as critical and there was a window available for when a further application could be made if required, the Judge considered it would not be appropriate to grant the declaration sought without further investigation. Unfortunately, there was no draft order in word format which could be amended and Counsel had to draft an order from scratch which took some time. A further hearing was scheduled for four days later where directions were set down and the matter was listed for a hearing over a month later so that updating medical evidence could be obtained from AB's treating clinician and a report obtained from a clinician instructed by the Official Solicitor. Upon review of his report and discussions between AB's parents and her clinicians regarding proposed palliative care, the parties were able to reach agreement that it was not in AB's best interests to be given certain life sustaining treatment.

In her Judgment, Mrs Justice Theis took the opportunity to provide guidance to parties when making Applications of this nature. She raised concerns regarding the timing and practical arrangements for the out of hours hearing on that Friday afternoon. She noted that in this case it was clear four days before the Application was made that there was an issue between the Trust and the parents. She stated that the issuing of an Application at that time would not have prevented efforts continuing to seek to resolve matters as these could run in parallel. Importantly, issuing the application at this earlier stage would have meant it was more likely there would have been an effective on notice hearing, with all parties being represented. In her Judgment she noted that the issuing of an Application in these cases provides more time for some basic steps to be taken including:

  1. Making suitable and sensitive arrangements for the parents to be able to participate in the hearing and ensuring that there is someone at the hospital to assist the parents in participating with the hearing. AB's mother initially attended the hearing on the telephone when she was in a public area of the hospital which was not suitable
  2. Providing sufficient time, where possible and appropriate, for the parents' solicitors to be able to secure public funding in advance of the hearing so that they can be represented at the hearing
  3. Alerting the Urgent Applications Judge and Clerk of the Rules at the earliest opportunity that an Application is likely so that the Official Solicitor can be alerted to the Application in more time to enable him to get a direction from the court for him to be invited to represent the patient. This also allows him to see the papers and start making enquiries at the earliest opportunity before attending the hearing
  4. Preparing a word version of the draft order so any amendments can be made promptly
  5. Ensuring that the statement in support of the out of hours Application gives sufficient information regarding the history and the patient's quality of life.

Mrs Justice Theis stated that such information is essential material when considering the context in which such an application is being made

In practice

It is clear from Mrs Justice Theis' Judgment that when considering making an Application requesting a declaration for providing or refusing treatment, parties should err on the side of making applications sooner rather than later. This enables safeguards to be put in place to ensure an effective hearing and that all parties' Article 6 rights are protected. Some of the points above, such as notifying the Clerk of the Rules or arranging for a draft Order in word format may seem minor issues, but all contribute to a smooth running and prepared hearing which will assist the Judge and hopefully lead to a swifter resolution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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