A NHS Foundation Trust v G (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWCOP 25 |
| Docket Number | Case No: 12975950 |
| Court | Court of Protection |
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[2022] EWCOP 25
Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 12975950
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Debra Powell QC (instructed by Hill Dickinson) for the Applicant and Third Respondent
Ms Sophia Roper QC (instructed by the Official Solicitor) for the First Respondent
Mr John McKendrick QC (instructed by Irwin Mitchell) for the Second Respondent
Ms Nicola Kohn (instructed by Simpson Millar) for the Fourth Respondent
Hearing dates: 8 th – 13 th June 2022
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.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is an application, brought by the NHS Foundation Trust and the M Care Commissioning Group, seeking injunctive relief surrounding the care plan of G. G is a 27-year-old woman who has been a patient at the Trust's Hospital since May 2008. In December 2021, I delivered a judgment setting out why it is in G's best interests to be transferred to a specialist care home as a ‘step down’ measure to moving to her parent's care. I was entirely persuaded that the care home provided the most appropriate environment for G and that given that she had spent most of her adolescence and the entirety of her adulthood to date in a children's hospital, an immediate move home would from both a ‘medical and safety point of view’ be inappropriate. That was the advice given by Dr Andrew Bentley, Consultant in Respiratory and Intensive Care Medicine, and Alison Smith, independent expert Nurse, which reflected the consensus of professional opinion.
The December judgment, [2021] EWCOP 69 requires to be read in conjunction with this one. G suffers from a rare and profound degenerative neurological condition which affects the entirety of her central nervous system. The condition is progressive and is neither receptive to treatment nor amenable to cure. She has significantly outlived her life expectancy. There are two clear reasons for this. Firstly, she has been continuously cared for by expert teams at the Hospital since she was 13 years of age. Secondly, she has had devoted round the clock support and care from her parents. 13 years ago, G's parents, in effect, gave up their lives and moved to live in hospital accommodation in order to support their daughter. They continue to live there, and their daughter remains in hospital. All agree that a hospital environment, particularly a children's hospital, is entirely inappropriate for G. I would go further because it needs to be signalled entirely unambiguously that G's continuing placement in this hospital fails to afford to her the respect for her dignity as an adult that she, like everybody else, is entitled to. Dr Jane Ratcliffe, the Lead Consultant, has told me, once again, at this hearing that it is now more than 8 years since G was deemed fit for discharge.
In the face of coherent and compelling medical evidence, the father (LF) who, I am satisfied is the driving force in this couple, objected, at the December hearing, to the removal of G's central venous line. The father's language is suffused with medical terminology, reflecting that he has spent very many hours every day in the hospital for a period of 13 years. The maintenance of the line, in the opinion of two consultants specialising in Paediatric Respiratory Medicine and Long-term ventilation, was potentially dangerous and providing no benefit. It had already been in for far too long and ultimately, I had to authorise its removal in the face of LF's opposition. I do not doubt that LF's resistance to this necessary intervention was driven by his love and concern for his daughter but, it was not a sustainable position and could not be reconciled with her interests. It is also a marker that, for a complexity of reasons, his decision making is not always reliable. Further, until the December hearing, he had been opposing the professional consensus that there should be no further attempt at CPR.
At paragraph 63 of the December judgment, I set out how it was that LF's difficult relationship with the treating clinical team had led to confusion surrounding this important facet of her care. The wider medical picture set out in the earlier judgment, particularly G's extremely fragile bones, will immediately indicate why the medical view was both correct and essential. That it had been left uncertain for so long had seriously compromised G's welfare. I find it necessary to say that which I stated more sensitively in the earlier judgment, these dangers had been created entirely by the father. I said then, and I reiterate now, that the tragedy of LF's behaviour is that it is generated by his love of his daughter. His decision making has become distorted by what strikes me as a visceral panic at any significant change in her circumstances and particularly, his apprehension that his own day to day involvement in his daughter's life may be diminished. It is this that has led to this appalling delay in moving G on from the hospital.
By December, it was already clear that the relationship between the hospital and LF was under great strain. However, there appeared to be some very tentative signs of convergence in mutual understanding. In particular, I had been left with the clear impression that both parents had recognised the fact that G is in the later stage of her life. I was told that a ‘ceiling of care plan’ could be constructed and in place within weeks of the hearing. Certainly, I was not anticipating a time scale beyond 8 weeks. I also took care to emphasise why the step-down arrangements, via the nursing home, were not only desirable but in my analysis, integral to her parents' wishes to care for her at home.
Sadly, any apparent resetting of the father/hospital relationship has proved to be entirely illusory. On the contrary, the relationship has now corroded to the point where it has become entirely dysfunctional. It has foundered to such a degree that it, in and of itself, compromises G's welfare. It is now characterised by both mutual distrust and poor, indeed entirely inadequate, communication. This generates fertile ground for confusion and error which jeopardises G's safety and wellbeing.
The legal framework
Mr McKendrick QC, acting on behalf of LF, raises preliminary points of law, challenging the jurisdictional basis for the injunctive relief that is sought. Ms Kohn, on behalf of M, supports his submissions. Mr McKendrick also advances arguments relating to the admissibility of hearsay evidence. With respect to his seductive and erudite submissions, I can address the points that have been raised relatively briefly. Firstly, it is contended that Section 16(5) of the Mental Capacity Act 2005 (the MCA) has been erroneously applied in the case law. It is necessary to set out the relevant provisions. Sections 15–17 of the Mental Capacity Act 2005 provide general powers of the Court of Protection, as follows:
Power to make declarations
15(1) The court may make declarations as to—
(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) “Act” includes an omission and a course of conduct.
Powers to make decisions and appoint deputies: general
16(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning—
(a) P's personal welfare, or
(b) P's property and affairs.
(2) The court may—
(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).
(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—
(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and
(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.
(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.
(7) An order of the court may be varied or...
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Re G (Court of Protection: Injunction)
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