mental capacity


Force feeding not in anorexia patient’s best interests

26 August 2020 by

Northamptonshire Healthcare NHS Foundation Trust v AB [2020] EWCOP 40

In this carefully nuanced judgment, the Court of Protection has ruled that although a patient with a chronic eating disorder would in all probability face death she did not gain weight, it would not be in her best interests to continue being subjected to forced feeding inpatient regimes.

AB is a 28 year-old woman who has over many years suffered from anorexia nervosa. She was first diagnosed when she was a teenager of 13 and now has a formal diagnosis of a Severe and Enduring Eating Disorder (‘SEED’).

The NHS Trust and the team of treating clinicians who have been responsible for providing care for AB applied to the COP for declaratory relief pursuant to ss 4 and 15 of the Mental Capacity Act 2005 in these terms:
(i) it is in AB’s best interests not to receive any further active treatment for anorexia nervosa; and that
(ii) AB lacks capacity to make decisions about treatment relating to anorexia nervosa.

Issues before the Court

Litigation capacity: it was not in issue that AB did have the capacity to instruct her solicitors.

General capacity: this was a more difficult question to be decided under Section 3 of the Mental Capacity Act. The key question was, did she have the mental capacity to make a decision about the specific medical treatment proposed. Roberts J had to decide one way or another on whether she should be tube fed, probably under sedation (otherwise she would remove the tube).

The Trust argued that she did not have this capacity, relying on evidence from AB’s treating psychiatrist Dr B. AB said she did have this capacity.

Best interests: was it in AB’s interests to discontinue any tube feeding? The unanimous professional view of her treating team was that palliative care and no further tube feeding was in her best interests. However, since the decision not to have any further forced feeding was a life-threatening one, the case had to be referred to the Court of Protection.


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Mental capacity for social media and the internet: another Court of Protection case

28 February 2019 by

apple applications apps cell phone

Photo by Tracy Le Blanc on Pexels.com

Re: A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2

The patient in these proceedings was a woman in her thirties (“B”). She suffers a learning disability and epilepsy and has considerable social care needs. She currently lives at home where she spends much of her time watching television.  She struggles to manage her personal care and hygiene, and, in the judge’s words, she is “grossly overweight.”

She is prone to confrontational behaviour when challenged, and can be physically aggressive. She is assessed as requiring support to maintain her safety when communicating with others; when she receives information which she does not want to hear, she often becomes dismissive, verbally aggressive and refuses to engage.

This hearing concerned her capacity to litigate in these proceedings, to manage her property, to decide where she resides and her package of care, and to decide with whom she has contact. The main focus of the judgment was on the question that arose in the “A” case , as to the capacity of the patient to use the internet and communicate by social media. Closely related to this was the issue of her capacity to consent to sexual relations.
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Mental capacity for handling the internet: Court of Protection

27 February 2019 by

mental-capacity-for-handling-the-internet-court-of-protection

A (Capacity: Social Media and Internet Use: Best Interests)  [2019] EWCOP 2

In this case Cobb J was asked to make declarations under the Mental Capacity Act 2005 regarding a learning disabled man’s capacity to use the internet and social media. (NB on 21 February judgment was also handed down in a similar case on which we will post shortly: B (Capacity: Social Media: Care and Contact) [2019] EWCOP 3.

The rapid development of the internet and proliferation of social media networks over recent years have fundamentally reshaped the way we engage with each other. We spend more time on our digital electronic devices than we do interacting with other humans and naturally this has brought huge benefits in terms of entertainment, communication and gathering information. The social media ‘apps’ available for instant messaging and networking are mostly easy and free to use, amongst them chiefly Facebook, WhatsApp, Snapchat, Facetime, Skype, Instagram, and Twitter. For people with disabilities the internet and associated social media networks are particularly important:


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Court authorises experimental treatment for CJD patient

25 February 2019 by

CJD prion disease

University College London Hospital and others v KG (by his litigation friend the Official Solicitor) [2018] EWCOP 29

This case concerned a man, KG, who suffered from the human prion disease CJD. As was explained in the judgment, prion diseases are invariably fatal, neurodegenerative conditions.

They are involve the build-up in the brain and some other organs of a rogue form of a naturally-occurring protein known as the prion protein. The rogue protein results from a change in shape of the normal prion protein. Once formed in the body, these rogue proteins (or prions) recruit and convert more of the normal prion protein into the abnormal form, setting off a kind of chain reaction which leads to a progressive accumulation of the rogue protein.


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Court of Protection upholds the right of a confused, lonely man to refuse treatment

13 October 2015 by

Empty-hospital-bed-300Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015) – read judgment

The Court of Protection has recently ruled that a mentally incapacitated adult could refuse a life saving amputation. This is an important judgement that respects an individual’s right to autonomy despite overwhelming medical evidence that it might be in his best interests to override his wishes. The judge declined to define the 73 year old man at the centre of this case by reference to his mental illness, but rather recognised his core quality is his “fierce independence” which, he accepted, was what Mr B saw as under attack.
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Transparency in the Court of Protection: press should be allowed names

19 March 2015 by

312856-002.jpgA healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment

The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.

This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second
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Munchausen, MMR and mendacious “warrior mothers”

15 October 2014 by

andrew-wakefieldA Local Authority and M (By his litigation friend via the Official Solicitor) v E and A (Respondents) [2014] EWCOP 33 (11 August 2014) – read judgment

It’s been an interesting week for the extreme fringes of maternal care. The papers report a trial where a mother is being prosecuted for administering toxic levels of medication to her daughter for “conditions that never existed” (as the court heard). Let’s see how that pans out.

And now the Court of Protection has published a ruling by Baker J that a a supporter of the discredited doctor Andrew Wakefield embarked on an odyssey of intrusive remedies and responses to her son’s disorder, fabricating claims of damage from immunisation, earning her membership of what science journalist Brian Deer calls the class of “Wakefield mothers.”

On the face of it, the detailed and lengthy judgment concerns the applicant son’s reaction to the MMR vaccination when it was administered in infancy, and whether it was the cause of his autism and a novel bowel disease, the latter being Wakefield’s brainchild.  But at the heart of the case lies the phenomenon that we all used to know as Munchausen’s syndrome by proxy.

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Our advance directives about how we should die should be respected – Court of Protection

2 June 2014 by

brain-in-head

UPDATE | The 1COR event which this post previously referred to is now full, so please do not turn up unless you have registered.

Sheffield Teaching Hospitals NHS Foundation Trust v TH and Anor [2014] EWCOP (22 May 2014) – read judgment

In a careful and humane judgment, the Court of Protection has demonstrated that the law is capable of overlooking the stringent requirements of the conditions governing advance directives, and stressed that a “holistic” view of the patients’ wishes and feelings must be adopted, if those point to the withdrawal of life saving treatment.

Background

TH was admitted to the Northern General Hospital in Sheffield earlier this year. His general health revealed a background of known alcohol excess, and he had suffered neurological damage involving seizures and severe depression of consciousness.

 

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Press has no direct role in welfare proceedings in Court of Protection

12 May 2014 by

G (Adult), Re [2014]  (Associated Newspapers Limited intervening) EWCOP 1361 (1 May 2014) – read judgment

Sir James Munby, President of the Court of Protection has ruled that the Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable adult who has been declared by the courts as lacking capacity under the Mental Capacity Act. 

Background to the application

The court was concerned with a 94 year old woman, a British African Caribbean who  lives in her own home in London. G is 94 years old. G has never married and has no children. She has no family living in the UK.  She suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments.
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Irascible does not mean incapable – Court of Protection

10 April 2014 by

brain-in-headWandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend) [2014] EWHC 990 (COP) 3 April 2014 – read judgment

This was a case about determination of mental capacity,  which both judge and counsel described as “particularly difficult and finely balanced”.  The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that

His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.

Background

IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain. 
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“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

8 April 2014 by

bird503_mediumSurrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QCHenry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified.
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Islamic “marriage” ceremony at home declared invalid by Court of Protection

25 November 2013 by

r-SHAM-MARRIAGE-COUPLE-large570A Local Authority v SY [2013] EWHC 3485 COP (12 November 2013] – read judgment

A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had

 “deliberately targeted” the respondent because of her learning difficulties and her vulnerability.

The courts would not tolerate such “gross exploitation.”

This was  an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life.
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Supreme Court weighs in on patient’s best interests and the meaning of futility

3 November 2013 by

Surgeons-007Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 – Read judgment / press summary

The Supreme Court has given judgment in the first case to come before it under the Mental Capacity Act 2005.  The sole judgment was given by Lady Hale (Deputy President of the Court), with whom Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes.

The case concerned best interests decisions in the case of a patient lacking capacity.  The patient, David James, had been admitted to hospital in May 2012 aged around 68 because of a problem with a stoma he had had fitted in 2001 during successful treatment for cancer of the colon. The problem was soon solved but he acquired an infection which was complicated by the development of chronic obstructive pulmonary disease, an acute kidney injury and persistent low blood pressure.  He was admitted to the critical care unit and placed on a ventilator.

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