United Lincolnshire Hospitals NHS Foundation Trust v Q (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 21 May 2020 |
| Neutral Citation | [2020] EWCOP 27 |
| Date | 21 May 2020 |
| Court | Court of Protection |
[2020] EWCOP 27
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION COURT OF PROTECTION
Royal Courts of Justice
Strand
London, WC2A 2LL
THE HONOURABLE Mrs Justice Gwynneth Knowles
Sitting as a Judge of the Court of Protection)
In the Matter of the Mental Capacity Act 2005
Ms N. Kohn appeared on behalf of the Applicant.
Ms C. Watson appeared on behalf of the Respondent.
( In Private)
This is an application by a hospital trust for, firstly, a declaration as to the capacity of Q, a 57-year-old woman, first to conduct these proceedings and, second, to make decisions about her dental treatment, and secondly, for a best interests decision and order as to whether (i) she should undergo full dental clearance under general anaesthetic, and (ii) whether she should receive intramuscular sedation to facilitate her transfer to hospital to undergo this dental surgery. I have case managed this application since its issue on 11 March 2020. The matter is listed for final hearing today.
Q's interests in the proceedings are represented by the Official Solicitor. Following the receipt of further witness evidence and an advocates' meeting on 14 May, both the applicant and the Official Solicitor are agreed as to the orders they invite me to make. I note also that Q's sister has filed a witness statement and is, I record, in agreement with the orders sought by the applicant and now endorsed by the Official Solicitor.
The agreement of the parties and of Q's sister is welcome but does not absolve this court from coming to its own conclusions as to whether what is proposed is in Q's best interests. I am very grateful to Ms Kohn on behalf of the applicant Trust and to Ms Watson on behalf of the Official Solicitor for their position statements, for the production of a useful electronic bundle, and for their participation in what was clearly a very productive advocates' meeting on 14 May. I have read all that material before the court in coming to my decision today.
First, I set out a little of the background. Q is now 57 years old. She has profound and lifelong learning disabilities together with epilepsy. Sadly, she also has impaired eyesight and is registered blind. She has mobility difficulties which necessitate the use of a wheelchair. Those who care for her believe her to suffer from some form of autistic spectrum disorder and it is clear that, from time to time, she displays extremely challenging behaviour to her carers. Q lives in a supported living placement with two other residents and has 24-hour care and supervision. She has lived there for about 14 years. She is highly resistant to changes in the very rigid structure of her daily life and she can reject attempts to provide her with personal care. For many years, she has resisted any proper or thorough dental hygiene.
In March 2018, the Special Care Dental Service was asked to see Q due to concerns raised by her carers that she was experiencing dental pain. She was seen to be frequently rubbing or touching the left side of her mouth, was refusing food, and when she did eat, she was mainly chewing on the right side,
On 29 May 2018, a domiciliary visit was carried out by a dentist from the community dental service. Ongoing concerns about Q refusing food, rubbing her tongue against her teeth, and sucking on her teeth were all reported. Her carers reported that her gums bled all the time and there was limited cooperation from Q with toothbrushing. The dentist who attended Q on that occasion noted that it was difficult to examine her but, on a simple visual look at her upper anterior teeth, her gums were red and swollen with visible recession and bone loss.
On 9 November 2018, Q was referred to the maxillo-facial surgeons at the local hospital for a full dental clearance under general anaesthetic. The referral was acknowledged in March 2019 and the surgery was scheduled to take place on 18 September 2019. However, it was cancelled on the day of the operation as Q had a prolonged seizure of around six minutes whilst getting ready to come to the hospital.
Best interests meetings were held on 20 November 2019 and 11 February 2020 and it was agreed by everyone present that it would be in Q's best interests to undergo the proposed dental surgery and to receive intramuscular sedation to facilitate her transfer to and from hospital. Accordingly, the applicant NHS Trust made an application to this court for an order and declarations that Q lacked the capacity to make decisions about her dental treatment, in particular, whether she should undergo a full dental clearance under general anaesthetic. It was submitted that it was in her best interests to undergo full dental clearance under general anaesthetic to relieve the pain and discomfort caused by periodontal disease and to receive sedation to facilitate her transfer to hospital to undergo such surgery. I note that the applicant is particularly concerned that the deterioration in Q's oral health is compromising her health generally, causing her pain, and complicating her enjoyment of food which is one of her great pleasures in life.
I turn to the legal framework which is well known and is helpfully summarised in paragraphs 11–15 of Ms Kohn's position statement.
The principles to be applied under Part 1 of the Mental Capacity Act 2005 [“MCA”] are familiar and are summarised in outline form below. Sections 1 to 3 of the MCA set out the principles by reference to which the capacity of those over the age of 16 is to be determined. Insofar as they are relevant to this application, the MCA provides that:
a) A person must be assumed to have capacity unless it is established that she lacks capacity: s.1(2) MCA. The burden is on the party asserting a lack of capacity to establish it on the balance of probabilities: CC v KK & STC [2012] EWHC 2136 (COP) per Baker J at paragraph 18.
b) A person is not to be treated as unable to make a decision unless all practicable steps to help her do so have been taken without success: s.1(3).
c) The determination of capacity under Part 1 of the MCA is always “decision specific”.
d) Any lack of capacity must result from an impairment of, or a disturbance in, the functioning of a person's mind or brain: s.2(1).
e) It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary: s.2(2).
f) A lack of capacity cannot be established merely by reference to an aspect of her behaviour, which might lead others to make unjustified assumptions about her capacity: s.2(3).
g) A person is to be treated as unable to make the decision on the matter in issue for herself if she is unable to (i) understand the information relevant to the decision; (ii) retain that information; (iii) use or weigh that information as part of the process of making the decision; or (iv) communicate that decision: s.3(1).
h) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as able to make the decision: s.3(3).
i) The “information relevant to the...
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The Legal Test Of Capacity And Best Interest Decisions In The Court Of Protection
...of United Lincolnshire Hospitals NHS Foundation Trust v Q [2020] EWCOP 27 concerns Q, a 57 year old with profound and lifelong learning disabilities, epilepsy, mobility difficulties and registered blind. Q has a 24-hour care package and her carers believe her to suffer from some form of aut......