Sandwell and West Birmingham Hospitals NHS Trust Applicant v CD (1st Respondent) EF (2nd Respondent) AB (by her litigation friend, the Official Solicitor) (3rd Respondent) NHS Sandwell and West Birmingham Clinical Coabissioning Group (4th Respondent)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis Dbe |
| Judgment Date | 01 August 2014 |
| Neutral Citation | [2014] EWCOP 23 |
| Date | 01 August 2014 |
| Court | Court of Protection |
| Docket Number | Case No: COP12520241 |
[2014] EWCOP 23
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis DBE
Case No: COP12520241
Ms Fenella Morris Q.C. & Ms Rose Grogan (instructed by Capsticks Solicitors) for the Applicants
Mr Vikram Sachdeva (instructed by Irwin Mitchell Solicitors) for the 1st & 2nd Respondents
Ms Fiona Paterson (instructed by The Official Solicitor) for 3rd Respondent
4th Respondents did not attend
Hearing dates: 30 July and 1 August 2014
This matter concerns an application by the 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 such as cardio-pulmonary resuscitation and other intensive treatment, should such treatment become necessary.
AB is now 20 years old. She was diagnosed with cerebral palsy at 18 months following a septic infection which resulted in blood poisoning and brain damage. She is represented in these proceedings by the Official Solicitor as her litigation friend and solicitor. There has been no issue in these proceedings that she lacks capacity to make these decisions within the meaning of the Mental Capacity Act 2005. The other parties are AB's parents and the local Clinical Commissioning Group (CCG).
What was thought to be the relevant CCG was joined as a party, however it transpired it should have been a neighbouring one. The correct one was only served with the order earlier this week. They have not attended court or made any representations.
The matter was listed before me on 30 July as a final hearing to determine the declarations being sought. After hearing some oral evidence from Dr X (Consultant, Intensive Care Medicine and Anaesthesia) the parties were able to reach agreement on the substantive issue, and I approved the resulting order as being in AB's best interests.
There remained two matters that were not agreed; the applicant's liability for the costs of the OS for the out of hours application and any guidance regarding out of hours applications. I put those two matters over to today, 1 August.
In the intervening period the OS has reviewed his position and confirmed yesterday he was content with an order that the Applicants pay half his costs. That is agreed.
On the remaining issue concerning guidance I have had written submissions from the parties (including a statement from the parents' solicitor) and seen the transcript of the out of hours hearing on 20 June.
Even though agreement was reached on the substantive matter, I considered it was important that the court sets out the reasons why the substantive order was approved.
Background
AB has a diagnosis of a severe learning disability, cerebral palsy, severe kyphoscoliosis, type 2 diabetes, epilepsy, hypothyroidism and hypoadrenalism. She is currently an inpatient at a hospital run by the Trust where she has been since 12 June.
AB is generally cared for by her parents at the family home where she lives with her parents and two siblings. Her parents are her main carers, which they undertake with significant commitment and devotion. A measure of this commitment is demonstrated by one of the intensive care consultants reporting how the father set the alarm clock at 2 hour intervals during the night to ensure AB received suctioning at an appropriate frequency. During her stay in hospital they have not left her alone, other than when they took part in these court proceedings. Their dedication to her has been rightly commended by Dr Bell (Consultant, Intensive Care Medicine and Anaesthesia) who was instructed by the OS to prepare a report. Most of the time AB is bed bound, but is able to spend small amounts of time sitting in an especially adapted chair. Her mother reports her having small amounts of deliberate movement in one of her hands. She is fed through a naso-gastric tube and is faecally incontinent. AB is registered blind and is hard of hearing. She is able to communicate in a limited manner through facial expressions and sounds and responds to those she knows well, such as her parents and siblings.
She was admitted to the hospital during the evening of 12 June 2014 with a history of an illness lasting 2–3 days. AB's GP prescribed antibiotics over the telephone, but her parents called an ambulance as they were concerned by her deterioration. They were right to be as it transpired she was suffering from pneumonia in the left lung. She was admitted to the Intensive Treatment Unit ('ITU') where she remained until 16 June, when she was discharged to the ward. Unfortunately AB deteriorated again and was re-admitted to the ITU on the morning of 20 June.
The Trust brought this application because AB's treating medical team did not consider that, in the event of her condition deteriorating, it would be in her best interests to receive
(i) invasive ventilation
(ii) cardio pulmonary resuscitation, or
(iii) inotropes and renal support therapy
The application was initially made to me as the out of hours judge at about 5.15 pm on Friday 20 June 2014. The only information I had was the application, some medical notes and a two page document from Dr Y, the joint speciality lead in critical care medicine at the hospital.
According to the statement from Ms Lucas (the Trust's external solicitor) she received a telephone call on 20 June from Dr Z (medical director at the Trust) 'advising that there was a patient in the hospital without capacity, and there was a disagreement with the patient's family regarding treatment'. She was told that the parents initially agreed with the clinical team's view that AB should not have invasive ventilation, renal support in the event of multi-organ failure or CPR in the event of cardiac arrest in the context of deteriorating multi organ failure. A 'Do not attempt cardio-pulmonary resuscitation' form was completed and placed in AB's records. She was discharged from ITU on 16 June and the following day the father questioned this further in the light of the development of a care package in the coABunity. It appears from the medical records that after the discussion with the father on 17 June legal advice was sought by the clinical team.
Ms Lucas was instructed there was a meeting between the parents and the trust on 19 June where the parents confirmed 'that, although they did not want their daughter to be put through unnecessary distress, they did want everything to be done for her. AB's parents asked for a written document setting out the limitations the clinicians thought were appropriate and this was provided to them.'
Ms Lucas said she was also sent a copy of a letter from Irwin Mitchell acting on behalf of AB's parents sent at 18.28 on 19 June asking for confirmation by 10am on 20 June that the Trust would remove the 'do not attempt cardio pulmonary resuscitation' or make an urgent application to the court.
Ms Lucas states that at the time of her conversation with Dr Z she was informed AB was deteriorating again and had been re-admitted to the ITU and the 'do not attempt cardio-pulmonary resuscitation' form had been revoked temporarily. However, the clinicians treating AB were very concerned that due to her deterioration she may require cardio-pulmonary resuscitation over the weekend, which they considered would not be in her best interests and agreed an urgent application should be made to the court that day.
Whilst Dr Z was arranging for the records and a statement to be sent to Ms Lucas she informed the parents' solicitor that an urgent application was going to be made. She then instructed counsel to make the application. She received the medical records that morning and the statement of Dr Y at 15.24 which she sent on to counsel.
Ms Lucas confirms at the end of her statement that after counsel had left for court AB's condition had stabilised again, however the clinical staff remained concerned that her condition could deteriorate at any time and remained of the opinion that it would not be in AB's best interests to receive certain treatments.
I had notice of the application at around 5pm and commenced the hearing at about 5.15; fortunately I had not left the Royal Courts of Justice, so the hearing was able to take place in a court room. Counsel for the Trust was present. I was informed the OS had been spoken to that morning but, according to the Trust, had indicated that they would need an order of the court before they could become involved. The OS records state they were informed by the Trust that they would not be required. The mother had joined the hearing by telephone, but it transpired she was taking that call in the public area of the hospital, which was clearly not satisfactory. The Trust state that a room was available, but the mother could not be found when the hearing started.
It quickly became apparent to me that AB needed her own representation, needed to be joined as a party and I contacted the Official Solicitor, Mr Pitblado. He was aware of the earlier approach to the OS by the Trust. He arranged for counsel, Ms Paterson to attend. It was only through good fortune that I was able to speak to the OS and Ms Paterson was available. I should record at this point the court's gratitude to Ms Paterson, this case...
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