Bhcc v Kd
| Jurisdiction | England & Wales |
| Judge | HHJ Farquhar |
| Judgment Date | 30 August 2016 |
| Docket Number | Case No: 12677926 |
| Court | Court of Protection |
| Date | 30 August 2016 |
[2016] EWCOP B2
IN THE COURT OF PROTECTION
SITTING AT BRIGHTON
His Honour Judge Farquhar
Case No: 12677926
Mr Bruce Tregoning (instructed by BHCC) for the Local Authority
Mr Nicholas O'Brien (instructed by Mackintosh Law on behalf of the Official Solicitor) for the Respondent
Hearing dates: 22 nd July 2016
The Issue .
There is total agreement between the parties in relation to all of the substantive issues in this matter. That is to say it is agreed that KD should remain in her current care home and be subject to the same drug regime that is currently applied under the present Standard Authorisation. The sole remaining issue is as to whether the desired goal can be achieved under the Mental Capacity Act 2005 or whether KD is a "Person Ineligible to be Deprived of her Liberty by this Act" as defined by Schedule 1A of the Act.
The Local Authority submit that KD is eligible within the Act and that a Standard Authorisation is the least restrictive approach to ensure that her Best Interests are met. It is argued on behalf of the Official Solicitor that KD is ineligible pursuant to Schedule 1A and consequently it is irrelevant as to whether the balancing exercise would fall in favour of approaching this matter under the Mental Capacity Act 2005 as opposed to the Mental Health Act 2003.
Factual Background
KD is an 80-year-old lady who has been widowed since the late 90s. She has two adult stepsons who have knowledge of these proceedings and have made their views known but are not parties. KD lived in her own property up until December 2012 when she was admitted to hospital for a period of three months pursuant to section 3 Mental Health Act 2003. She was then back at home from February 2013 to July 2013 before a further five months in hospital following a further section 3 admission. There was then a 10 month period between December 2013 and October 2014 at Wayland House which was initially on section 17 Mental Health Act 2003 leave. KD was able to go home in October 2014 but unfortunately that only lasted for two weeks as there was a further section 3 admission in November 2014 which continued until 26 th of June 2015. At that point she was admitted to LH a care home and again this was initially on section 17 leave.
KD has a long history of severe mental illness by way of schizophrenia. There are many occasions upon which she did not take the appropriate drugs and she has been resistant to taking those drugs on many occasions. It was partly this that caused the frequent admissions to hospital in the last few years. Further to the diagnosis of schizophrenia she is also now suffering from frontal lobe dementia which has deteriorated over the last five years.
KD has made it clear that she wishes to return to her own property. As a result of that the Local Authority made the application to the Court of Protection in December 2015. There have been a number of hearings since that date and I have already made certain orders. This includes a declaration that KD lacks capacity to decide where she should reside, whether she could conduct these proceedings, and whether she can consent to her treatment or care package. The issue of capacity does not need to be reconsidered at this hearing.
A further order was made on 23 June 2016 that it was not in the best interests of KD to return to live at her former home. The issues that remain to be decided are therefore narrow. They are as follows:
a) whether a placement at LH was in KD's best interests or should a move to an alternative care home nearer to her home be attempted;
b) whether the treatment of KD's mental health meant that she was ineligible for a standard authorisation pursuant to Schedule 1 A Mental Capacity Act 2005;
c) whether the treatment regime which would include use of covert medication was in KD's best interests.
The parties were able to agree the first and third matters listed above and the reality is that the vast majority of this hearing has covered the second issue that is to say whether or not KD is eligible for a standard authorisation. However, it is important for me to consider the other issues and I shall deal with those first. The main issue to be decided is a purely legal issue and as a result it was agreed between the parties that there was no requirement for there to be any oral evidence.
Medical Evidence
There are two very detailed medical reports from Dr Peter Jefferys dated 17 February 2016 and an addendum report on 11 July 2016. There are also short reports from Dr C the local Associate Specialist in Older Persons Mental Health in the form of emails dating from 21 June 2016 to 29 June 2016. As Dr C states the report of Dr Jefferys is extremely thorough and detailed and he has the expertise in providing court reports so there is no sense in reinventing the wheel. I agree entirely with that sentiment, the reports received from Dr Jefferys are extremely impressive and he has formidable experience in this field. It is as a result of his disquiet in the drug regime and the basis upon which it is provided involved in this case that the Official Solicitor takes the stance that he does in this matter.
Dr Jefferys 17 February 2016
There is no need within this judgement to set out many areas of the reports as declarations have already been made in relation to the capacity of KD to conduct these proceedings and also to decide upon her residence. Dr Jefferys details KD's mental health history which apparently commenced in the 1970s when she was treated with antipsychotic medication. It would appear that this medicine produced tremor of the hands as a result of which there has been a change in medication. There was a relapse in December 2012 when KD presented with serious paranoid symptoms associated with marked self-neglect. This was probably due to a cessation of her medication which she refused to take as recommended by her psychiatrist. KD has never been completely free of paranoid psychotic symptoms since that time. There are recurrent episodes of distressed and agitated behaviour often with bizarre delusional utterances with religious sexual or paranoid content. Her consistent primary mental health diagnosis has been schizophrenia.
The medication was amended in December 2014 to Clozapine, an antipsychotic medication licensed for treatment resistant schizophrenia and she has remained on this since then. This requires regular blood monitoring due to a side-effect risk of bone marrow suppression. It is noted that KD has rarely complied with oral medication during periods when she lived at home since 2013. In hospital whilst under s.3 Mental Health Act 2003 she required a Certificate for her antipsychotic medication which is a requirement of s.58 of the Mental Health Act 2003, as she was non-compliant and deemed to lack capacity. There has also been a diagnosis of a Parkinsonian syndrome over the last few years which is progressive. It is also the clear view of Dr Jefferys that KD has a slowly progressive dementia which is a new and distinct mental disorder from her schizophrenia.
The insight of KD in relation to her diagnosis of schizophrenia is extremely limited and she insists that she would not continue Clozapine if she was discharged home. It is noted by Dr Jefferys that although the provisions of s.58 Mental Health Act 2003 were complied with whilst she remained under s.3 MHA, as she was not subsequently placed on a Community Treatment Order (which would include the provision for independent review of treatment for non-consenting patients) the protection that had previously been afforded to KD by the Mental Health Act is not currently in place. It was further stated by Dr Jefferys that he had "no professional experience" (and his experience is clearly considerable) "of a case such as this, where a patient lacking capacity to consent to medication for mental disorder and requiring Clozapine (with its invasive requirement for regular blood tests) has been managed simply under the DOLS/MCA provision. It is therefore for others to consider the potential legal implications in her case".
Dr C June 2016
The short reports/emails from Dr C agreed with the view of Dr Jefferys in relation to KD's cognitive impairment. He was of the view that the present care home is able to manage her needs including her episodes of paranoid thoughts, mood swings and shouting. He added that she is compliant with her medication as well as the necessary blood tests involved. This care home is known for their expertise in managing patients with dual diagnoses and KD appears fairly settled there and not unhappy. It is most unsettling to change residence in patients with dementia and this would possibly lead to behavioural problems for KD. In a follow-up email dated 29 th of June 2016 he again confirms that KD is at present entirely compliant with taking the medication as well as the blood tests. The mechanism for review with respect to her schizophrenia would be twice yearly checks by an appointed care coordinator under the Later Life Assessment and Treatment service, the follow-up for her dementia would be to check on her within three months for compliance and potential side-effects and after that, if stable, she would be discharged to her GP. Dr C confirms that KD has been declared to lack capacity and cannot refuse to take her medication. " If it becomes physically difficult to administer her medication", he adds "then it can be given covertly by the care home as per their protocol, and to homes registered to care for clients with mental health problems."
In considering the regime under which this medication is provided Dr C stated " if this became an issue in the future and her schizophrenia became uncontrolled I would imagine a situation where KD was assessed...
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