The Mental Health and Another v The Council and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 25 June 2014 |
| Neutral Citation | [2014] EWCOP 8 |
| Docket Number | Case No: 12505653 |
| Court | Court of Protection |
| Date | 25 June 2014 |
[2014] EWCOP 8
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Pauffley
Case No: 12505653
John McKendrick for the Applicants
Michael Horne for the Official Solicitor, litigation friend for DD
BC did not appear and was not represented
Hearing date: 18 th June 2014
Introduction and issues
The issues for decision relate to DD, a woman in her mid thirties with diagnoses of autistic spectrum disorder and borderline learning disabilities. In summary they are –
(a) Whether DD lacks capacity to make decisions in relation to her healthcare and, in particular, lacks capacity to consent to a placental localisation scan and an ante natal assessment;
(b) Whether it is in her best interests to undergo such a scan and assessment;
(c) Whether the Applicants should be authorised to take such necessary and proportionate steps so as to give effect to the 'best interests' declaration to include forced entry, restraint and sedation.
This brief judgment is given for two reasons (i) to set out my capacity and best interests' determinations and (ii) for the benefit of Cobb J who is to be the allocated judge at two further hearings.
Section 48 of the Mental Capacity Act 2005 enables the court to exercise its powers on an interim basis if satisfied it is in P's best interest provided there is reason to believe that P lacks capacity in relation to the matter, that the matter is one to which its powers under the Act extend and it is in P's best interests to make the order without delay.
Within his Position Statement, Mr Horne on behalf of the Official Solicitor, had floated the potential for utilising s.48 given that the evidential threshold is lower than that required to rebut the s.1(2) presumption of capacity. Mr McKendrick, on behalf of the Applicants, indicated his willingness to proceed in that way; and so it was that the oral evidence concentrated more or less exclusively upon 'best interests.'
As Mr Horne's Position Statement made clear, the Official Solicitor's stance was that the advantages to DD of the proposed interventions, and the risks she would run if she were not to undergo that management, could only be assessed following the oral evidence of Consultant Obstetrician A, consultant obstetrician and gynaecologist; Consultant Psychiatrist F, consultant psychiatrist for adults with learning difficulties; and Mr Griffiths, consultant obstetrician and gynaecologist instructed by the Official Solicitor.
Mr Horne's Position Statement also drew attention to the Applicants' proposals for forcible entry and potential restraint (including sedation) saying that on any view those measures would represent a serious interference with DD's autonomy and constitute a deprivation of her liberty. He argued she would be caused distress and frustration at the very least and suggested that this may prove to be a "magnetic factor" in the best interests' assessment unless the interventions proposed bring a substantial benefit to DD.
In fact, four witnesses gave evidence. In addition to those already mentioned, Midwife C, Safeguarding Midwife for the NHS Trust, supplemented her written statement with oral evidence. Towards the end of the day long hearing, during the course of the fourth witness's evidence, it suddenly became possible for the two participants, the Applicants and the Official Solicitor, to agree a course of action which all present then considered is in DD's best interests.
The final witness, Mr Griffiths, participated over a telephone link very briefly. He started his evidence at 15.00. A few minutes later, in answer to Mr Horne's direct question as to whether an ante natal assessment as planned would be in DD's best interests, Mr Griffiths said, "Yes." He went on to say that although there was, as he saw it, no clinical necessity for a placental localisation scan, he believed Consultant Obstetrician A's description of how he would attempt to engage DD as part of a therapeutic intervention would be in her best interests. He observed that such an ultra sound scan is neither "very threatening" nor would it be "invasive." At 15.04, Mr Griffiths said there was nothing proposed within Consultant Obstetrician A's treatment plan which he regarded as contrary to DD's best interests. In the circumstances there was no need for cross examination. The hearing drew to a consensual conclusion.
Essential background
The essential background may be shortly summarised. DD has had a truly tragic and complex obstetric history. Between 2002 and 2013, she gave birth to five children all of whom have been taken into care and subsequently adopted. She has been the subject of a number of safeguarding vulnerable adult strategy meetings.
DD lives in the community with her partner, BC, who is known to have learning disabilities which are more severe than hers.
In 2002, DD's first baby was delivered by emergency Caesarean section at about 36 weeks gestation because of a delay in the second stage of labour combined with foetal distress.
Her second child was born in 2009 as the result of an elective Caesarean at 38 weeks.
In 2010, DD delivered her third baby at home with BC's assistance. She was subsequently found to have a prolapsed bladder which required catheterisation.
In 2011, DD was discovered at home in the latter stages of a concealed pregnancy and suffering from prolonged seizures. BC had not called for the emergency services. DD was admitted to the intensive care unit and given a general anaesthetic because otherwise it had been impossible to control her fitting. The baby was delivered by Caesarean section at 29 weeks gestation. DD then had a post partum haemorrhage. A subsequent CT scan showed that she had suffered an intra cerebral embolism which was probably pregnancy related. DD discharged herself from hospital after four days eliminating the potential for any further investigations
DD's fifth child, again a concealed pregnancy, was born at home and without the involvement of health service professionals in 2013. DD refused any medical intervention or post natal examination.
On 8 th April 2014, a warrant was executed under s. 135 of the Mental Health Act 1983. DD's home was forcibly entered and she was taken to a psychiatric unit for the purposes of an assessment of her mental disorder. She was assessed by two consultant psychiatrists who concluded that she has a mental disorder namely Childhood Autism and borderline Learning Disability. An assessment was performed by Midwife C; and DD also underwent an ultra sound scan. It is noteworthy that DD agreed to and was compliant with both Midwife C's examination as well as the scan.
Investigations on that day revealed that DD was pregnant with one child at approximately 22 + 4 gestation. With her agreement, blood and urine samples were taken which indicated she had a urine infection, requiring treatment with antibiotics, and slightly low haemoglobin levels. Although a prescription was given, it is not thought it was submitted to a dispensing pharmacist.
Three further ante natal appointments have been offered. Transport has been offered and provided. DD has not answered the door, did not appear to be at home and has not attended any appointment.
Notwithstanding the orders made by Mostyn J on 13 th June, conveying the clearest encouragement to the Official Solicitor to act as B's litigation friend, he was neither present at the hearing last week nor represented.
Even although there have been a very large number of professionals, (social workers, community midwives and police) visiting DD's and BC's home in the period since 8 th April, neither of them has engaged. Despite a number of attempts to contact DD by representatives of the Official Solicitor, she has not responded.
Given the urgency of the situation for DD, it was impractical to delay. The assumption had to be that BC's wishes and feelings would have been supportive of DD's stance which is that she should be left alone, does not want any services or to attend hospital appointments.
Capacity – interim declaration
As I have already mentioned, there was no desire on the part of either the Applicants or the Official Solicitor to litigate the issue of DD's capacity at this interim...
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