Chesterfield Royal Hospital NHS Foundation Trust v TS (by his litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peel |
| Judgment Date | 17 June 2021 |
| Neutral Citation | [2021] EWCOP 41 |
| Date | 17 June 2021 |
| Docket Number | Case No: 13766168 |
| Court | Court of Protection |
[2021] EWCOP 41
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
IN THE MATTER OF TS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Peel
Case No: 13766168
Miss Emma Sutton (instructed by Hill Dickinson LLP) for the Applicant Trusts
Miss Sophia Roper (instructed by Official Solicitor) for the Respondent
Hearing date: 15 June 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is delivered ex tempore.
The applications before me, dated 9 June 2021, have been made by Chesterfield Royal Hospital NHS Foundation Trust and Derbyshire Healthcare NHS Foundation Trust, who jointly seek declarations as to (i) TS's capacity to make decisions regarding the proposed fitting of a pacemaker for his heart block, it being asserted that TS lacks capacity to do so due to a delusional disorder, and (ii) that it is in TS's best interests for a pacemaker to be fitted. Further, the applicants seek a deprivation of liberty order authorising, if and insofar as may be necessary, such minimal restraint and use of force as may be required to carry out the proposed procedure. The first applicant is responsible for providing TS's physical healthcare, and the second applicant is responsible for providing TS's mental health care. Miss Sutton appears on behalf of the applicants and Miss Roper on behalf of the Official Solicitor.
It is intended that the procedure be undertaken on 17 June 2021, subject to the decision of this court. That is, therefore, a matter of 2 only days away.
TS is 81 years old and lives by himself. His marriage ended in 1998 and he has no children. He has four siblings, but is said not to be in contact with them, and there are no particular friends or family involved in his care. He was initially detained under section 2 of the Mental Health Act 1983 (“MHA”) on 20 March 2021, after saying that he had been poisoned by the police. Thereafter he presented as agitated, irritable, and paranoid. Since 13 April 2021 he has been detained under section 3 of the MHA. The unit where TS is currently detained is on the same site as Hospital A, where the proposed procedure to fit the pacemaker would be carried out.
On 17 April 2021, TS experienced an episode of chest pain and had a brief admission to the emergency medical unit. After some investigation, he was diagnosed with asymptomatic Mobitz type 2 heart block. This arises where there is a problem in the connections to the parts of the heart that beat from the part of the heart that regulates the beat. When there is a wobbly connection, at any time there can suddenly be a problem and the heart's beating can go awry, or stop altogether. The standard medical response to heart block is a pacemaker. On the 21 April 2021, TS agreed to the pacemaker being fitted and the procedure was duly booked to take place on 23 April 2021. He then changed his mind and, since 23 April 2021, has not consented to a pacemaker being fitted. As stated, today the applicants are represented by counsel, as is TS through the Official Solicitor. The position of the Official Solicitor is that the applications are consented to on behalf of TS, although it is right to say that TS himself disagrees with the applications.
I pause to comment on the great care and sympathy involved in the preparation of this case. The clinicians have plainly treated and considered TS's case with considerable sensitivity and thoughtfulness. Similarly, I would like to thank the legal team for the applicants and the legal team instructed by the Official Solicitor. The bundle is compact and includes all relevant documents, the position statements of Miss Sutton and Miss Roper are helpful and clear, and the parties have cooperated in terms of producing an agreed transparency order and draft final order for me to consider. In other words, all relevant papers for me to consider were available timeously. I also appreciate and acknowledge the care taken on behalf of TS, through his advocate and legal team, in putting forward a case with which he disagrees, although he has been made aware of what would be said on his behalf.
In the circumstances, it was agreed that none of the clinicians who provided written evidence should give oral evidence. This was principally due to Dr A (consultant anaesthetist), Dr B (consultant cardiologist) and Dr C (consultant psychiatrist) attending a roundtable meeting last night with counsel who have appeared before me today, and their respective solicitors, to narrow the issues and consider the treatment plan in detail.
I spoke to TS on two occasions. First, in the presence of his legal team just after the hearing started, and second, after counsel had given their submissions orally. I have decided to give a reasonably comprehensive judgment because TS is present and because his case deserves nothing less.
I turn now to the evidence on the question of capacity. Albeit acknowledging that there is no dispute that TS lacks capacity to make the decision as to whether a pacemaker should be inserted and to have ancillary treatment, that is ultimately a decision for the court. The evidence of the clinicians and, in particular, Dr C (TS's consultant psychiatrist) is as follows.
TS has a delusional disorder, and has had paranoid thoughts since at least 2012. He has been known to the community mental health team since 2016. It appears that the disorder deteriorated substantially from 2020 onwards, and was untreated for many years.
TS believes that he is, and has been for many years, persecuted by the council, the police, other persons, and now the medical staff who are all (as he believes to be the case) part of a conspiracy against him. In 2015, TS told a judge during a hearing at the local county court regarding his tenancy, that a tunnel had been dug by the police from the police station to underneath his flat so that they could access his property. The papers also record that in 2020 an adult care worker reported that TS was expressing paranoid thoughts to the effect that his neighbours were listening in to his phone calls and following him, and that he had placed foil on his windows to prevent cameras looking in. In hospital, he is reluctant to eat food and take medication unless from a sealed package, so as to reassure himself that it has not been tampered with. He believes that his heart problem has been caused by the torture on him perpetrated by the council and the police who have followed him and poisoned him, and he does not want the pacemaker fitted until they desist from such activities. He understands the nature and the purpose of having a pacemaker, and is able to retain that information, but it is said by the clinicians that he is unable to weigh and balance the risk, as any balance is distorted by his delusional disorder.
In what has been accurately described by the applicants as a “Catch 22 situation”, unless TS receives antipsychotic medication, the delusional disorder will not improve and he will not be able to regain capacity, but he cannot receive certain types of antipsychotic medication until the pacemaker is fitted due to his heart block. Once the pacemaker is fitted, the benefits could be immediate in terms of receiving medication. There is no guarantee that medication will improve TS's psychosis, but I understand it to be the case that his interpersonal relationships, and quality of life, would improve. Dr C has also said that it would be unlikely that TS would physically seek to attempt to remove the pacemaker once fitted, and that it would be unlikely that TS would resist the procedure. Therefore, it is unlikely that physical restraint would be required, although it cannot be ruled out.
Before reaching my conclusions, I turn to the cardiological medical evidence. A heart block presents a serious risk of cardiac problems, including sudden death which could occur at any time. In 2009, TS had a myocardial infarction (a heart attack), and in 2015 he had treatment in the form of angioplasty which is a stent to retore circulation to a narrowed artery in his heart. Without a pacemaker, it is very likely that he will have symptoms including dizziness and fainting, and could die. When this could happen is unpredictable – it could be today, or at any point in the future. The risk of asystole (TS's heart stopping completely) is around 35% per year. Prima facie, TS is at greater risk due to his background of ischaemic heart disease and his psychosis.
Dr B (consultant cardiologist) says that the benefits to TS's physical health of having a pacemaker are overwhelming and I quote as follows: “I cannot think of a patient with capacity with a clear indication, who has refused one”. He says that there is no less invasive way of treating TS's heart block, there is no other available procedure, and that it is accordingly a choice between either a pacemaker or no treatment at all. The pacemaker, says Dr B, would also allow TS to take medication orally for his paranoid delusions which at present risk worsening the heart block....
To continue reading
Request your trial