South Tyneside and Sunderland NHS Trust Foundation v SA (by His Litigation Friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis DBE,Mrs Justice Theis |
| Judgment Date | 08 June 2022 |
| Neutral Citation | [2022] EWCOP 23 |
| Docket Number | Case No: COP13627384 |
| Court | Court of Protection |
[2022] EWCOP 23
Mrs Justice Theis
Case No: COP13627384
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Eloise Power (instructed by DAC Beachcroft Solicitors) for the Applicant
Mr Conrad Hallin (instructed by Official Solicitor) for the Respondent
Hearing date: 7 th June 2022
Judgment: 8 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.
This judgment was delivered in public. The judge has given leave for this version of the judgment to be published. The anonymity of the children 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.
Introduction
The court is concerned with an application relating to serious medical treatment concerning SA, age 22 years, who has a diagnosis of Autistic Spectrum Disorder, Severe Learning Disabilities, Communication difficulties and Attention Deficit Hyperactivity Disorder. Due to his needs SA has lived in a 24 hour supported care setting with a care team for the last 10 years.
The application is made by the NHS Trust (‘the Trust’) responsible for SA's dental and medical care. SA is a party and represented by the Official Solicitor as his litigation friend as S lacks capacity.
These proceedings were issued on 9 May 2022, directions were made by David Lock QC (sitting as a Tier 3 judge in the Court of Protection) on 19 May 2022 leading to this hearing. In addition he made a transparency order until further order preventing any person from identifying SA, other family members or the place where SA resides.
The Trust seeks orders enabling them to examine SA's mouth under general anaesthetic and provide such dental treatment as required, examine SA's ears and perform suction clearance and/or insert grommets and take blood to monitor his current medication. This procedure, if authorised by the court, is planned for 9 June. The Trust submits these orders are in SA's best interests as he appears to remain in pain and discomfort but despite the best efforts of the relevant medical professionals they have not been able to examine SA due to his lack of co-operation, levels of agitation and unpredictable behaviour.
The Trust has sought to engage SA's parents in making decisions about their proposals regarding SA's dental and medical treatment. They have been served with these proceedings. SA's mother has responded and informed the court that she speaks for both parents. In the documents filed by the mother she does not consent to the proposed treatment and requests the Trust and the court consider whether any treatment SA does have includes a frenectomy. This is not supported by the Trust. They have provided evidence to support their position in relation to the frenectomy. Although given notice and served with all relevant documents the mother has not attended this hearing, or the earlier directions hearing. There is a statement from her, a position statement and a number of emails which I have seen and read.
The Official Solicitor supports the Trust's application in relation to the dental and ENT investigations. In relation to the issue regarding the frenectomy the Official Solicitor was neutral and considered that issue should be considered by the court.
This matter was listed for hearing on 7 June 2022 when the court heard the oral evidence from
(i) Ms PL — Community Nurse learning Disability Team
(ii) Ms JE — Residential Home Manager
(iii) Ms RR — Speech and Language Therapist
(iv) Dr P — Senior Dental Officer, Community Dental Service
(v) Mr B – Consultant Oral and Maxillofacial Surgeon
Having heard the evidence the Official Solicitor was able to finalise her position at the conclusion of the evidence that the frenectomy procedure was not in SA's best interests. Having heard the evidence the Official Solicitor considered the risks outweighed any benefit for SA of that procedure being undertaken.
At the conclusion of the hearing yesterday I announced the court's decision that the Trust's application would be granted for the dental and ENT procedures and that a frenectomy was not in SA's best interests. The reasons for that decision are now set out below.
Before doing so can I express the court's gratitude to both counsel for their helpful position statements, and concise and focussed oral submissions. Also, to each of the witnesses who made time to give oral evidence in this case and the clarity with which they expressed their views, which was very helpful. Their oral evidence set out the very great care they had taken in reaching the conclusions they had.
Relevant background and evidence
SA currently lives in a supported living setting with a care team. There are two other service users in the home. SA usually has two care workers to support him. He is settled in the placement and has been there since 2018. He often goes out on trips and sees his parents briefly each weekend.
Recently SA was observed being in some discomfort by those who support him, it seemed to come either from his mouth or the side of his face. The investigations that have been possible have not been able to establish what the difficulties are.
At a dental appointment with Dr S in early March 2022 SA's carers reported that they considered the pain was coming from SA's teeth as he had been hitting the lower right side of his face and hitting his head against a sideboard. It was not possible to examine S at that appointment due to the level of his agitation. As no extra swelling was observed no antibiotics were prescribed, it was thought the cause may be a partially erupted wisdom tooth. The plan was to review the position two weeks later.
SA was returned to the clinic four days later as there had been no improvement. SA's carers reported he held the right side of his face, his right ear and picked at his teeth with his hands. Again it was not possible to examine him due to his level of agitation. Antibiotics were prescribed following a diagnosis of possible wisdom tooth, gum infection or a carious tooth causing an infection. In consultation with the care team it was decided that the only way a full examination could be undertaken was under a general anaesthetic.
The carers also reported other difficulties SA had relating to recurrent ear infections and vomiting/reflux issues. Dr P agreed to liaise with his ENT colleagues so that any investigations could be carried out at the same time. The report from Ms M (Consultant ENT Surgeon) dated 24 May 2022 sets out the investigations that would be undertaken, the possible treatment options, the potential risks and the steps that will be taken to mitigate those risks. Ms PL (Community Nurse in the Learning Disability Team) was contacted by Dr S, from the community dental team.
Contact was also made with SA's mother to discuss the proposed treatment. She raised the issue of whether a frenectomy could be undertaken at the same time. If that was done SA's mother considered his speech and swallowing would be greatly improved. Dr S agreed to make a referral to an Oral Maxillofacial Surgeon.
Further attempts to discuss this with the mother were unsuccessful.
Dr S was informed by Mr B (Consultant Oral Maxillofacial Surgeon) that he had rejected the referral as it required an assessment of SA by the Speech and Language Therapy team first.
On 20 April 2022 a best interests meeting was held. The mother was invited but did not attend. The unanimous view of those who attended was that SA lacked capacity. The statements from Dr P and Ms PL describe SA's position. Ms PL describes his language level as that of a 2 year old. He understands only very basic commands, he can only make one or two unintelligible sounds and largely communicates by pointing. One record suggests the mother said he would say ‘gag’ instead of ‘dad’. His diagnosis of severe learning disability and associated communication difficulties means that whilst he can, at times, follow simple instructions from his care team, he cannot understand more complex information. Due to his needs he has resided in 24 hour residential placements for about 10 years.
The meeting also concluded that his best interests required the proposed investigations under general anaesthetic to identify the source of the pain and treat accordingly. In addition, it was agreed his reflux issues should be investigated and blood sample should be taken to help monitor his psychiatric medication. The reflux issues are no longer pursued as part of this application.
Following this meeting further unsuccessful attempts were made to inform the mother of the outcome of the meeting.
Ms RR (Head of Speech and Language Therapy) undertook a functional assessment of SA's eating, drinking and communication on 24 May 2022. Prior to that she had spoken to SA's mother twice, but has not been able to contact her following the assessment. In her statement she refers to a letter dated 10 November 2016 from an ENT Consultant which stated that SA had seen two different consultants regarding his tongue tie who...
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