England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/06/2014

Mrs Justice Pauffley:

Introduction and issues

1. 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.

2. 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.
3. 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.
4. 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.'
5. 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.
6. 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.
7. 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.
8. 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

9. 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.
10. DD lives in the community with her partner, BC, who is known to have learning disabilities which are more severe than hers.
11. 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.
12. Her second child was born in 2009 as the result of an elective Caesarean at 38 weeks.
13. 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.
14. 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
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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

22. 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 hearing. Therefore, it is sufficient that I should declare myself satisfied that there are reasonable grounds for believing that DD lacks capacity to litigate these proceedings and also to make healthcare decisions in relation to whether or not to consent to an ante natal assessment, a placental localisation scan and any necessary ancillary care.
23. I should mention though, particularly since he gave evidence, that Consultant Psychiatrist F impressed me as an expert of the highest integrity. His written opinion is that DD has sufficient features of Autistic Spectrum Disorder to meet criteria for this diagnosis. The evidence cited by him includes a family history of ASD, a significant delay in DD's development of language, early evidence of poor social interaction and imaginative play as well as ritualistic and controlling behaviour. Moreover, his clinical assessment of DD in April revealed abnormalities in her reciprocal social interactions, language and communication as well as rigid, stereotyped behaviour. He reports that DD also shows abnormally fixated beliefs which, at times, have been classed as delusional in nature and, at other times, as fixated beliefs associated with ASD. Differentiation between the two can be extremely difficult. In either case they represent further evidence of abnormality in the functioning of DD's mind or brain.
24. Having reviewed the files, Consultant Psychiatrist F remains of the opinion that DD has an impairment in the function of her mind / brain and that this impairment causes her to be unable to weigh information regarding ante natal care and the safe delivery of her baby.
25. Within his Position Statement, Mr Horne took issue with Consultant Psychiatrist F's formulation suggesting he should have directed his assessment to whether or not DD has the capacity to take decisions as to whether to undergo antenatal care and how her baby should be delivered. Had he been required to respond to that issue, it seems to me that Consultant Psychiatrist F's opinion, incontrovertibly, would have been in the negative. The emphasis within the two questions may be different; the answers would amount to the same.
26. In the circumstances and cognisant that Dr Latham, consultant forensic psychiatrist, instructed on behalf of the Official Solicitor, takes a different view on the basis of his reading of the papers, I say no more than that there is a sound basis evidentially for making a s.48 interim declaration.

Best interests

27. I turn next to consider whether the proposed ante natal assessment and scan would be in DD's best interests. Consultant Obstetrician A's evidence was of key importance. He said, in response to Mr Griffiths' written suggestion that there would be no necessity at all for the proposed ultrasound scan and no absolute necessity for an ante natal check at this juncture, that both would "definitely be in DD's best interests." Consultant Obstetrician A was unable to say whether the ante natal assessment would be "absolutely essential" but in his view "one ante natal appointment is entirely reasonable and good care." He added that DD's "obstetric history has a huge impact for this pregnancy. DD has had not one or two but three Caesarean sections and complications in previous pregnancies which are very real." A little later, Consultant Obstetrician A added this – that "DD is a vulnerable adult in high risk pregnancy because of her history of three Caesarean sections, her previous fitting in pregnancy and of having suffered an embolic stroke. There is the potential for renal infection. Previously there has been post partum haemorrhage. To say she would not benefit from any ante natal care, (he) would oppose quite strongly."
28. It is, of course, of fundamental importance in the 'balance sheet' exercise to take account of DD's as well as BC's wishes and feelings. As the result of their failure to engage with the Applicants as well as the Official Solicitor, their views are more than a little obscure. In her handwritten letter received at the hospital's maternity unit in about the middle of May, DD makes clear she does not want any engagement with professionals.
29. A number of considerations arise as the result of the guidance given by Munby J (as he then was) in ITW v Z [2009] EWHC 2525. First, that P's wishes and feelings will always be a significant factor to which the court must pay close regard. Second, that the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. Third, that when considering the weight and importance to be attached to P's wishes and feelings, the court must have regard to all the relevant circumstances. They will include, but not be limited to, such matters as the degree of the P's incapacity; the strength and consistency of the views being expressed by P; the possible impact upon P of knowledge that her wishes and feelings are not being given effect to; the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and, crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.
30. The events of 8^th April, as reported upon by Consultant Psychiatrist F and Midwife C, seem to me to be very relevant in any consideration of DD's wishes and feelings. What happened after the locksmiths had secured entry into DD's and BC's home was that after an initial period of emotional distress, DD became calm. She recognises the police, said Midwife C, as the local beat officers. The police presence offered reassurance and had a calming effect upon both DD and BC; they would seem to recognise them as authority figures. DD realises, according to Midwife C, that "if she is compliant, everything will be fine." The most noteworthy feature of events on 8^th April is that when she arrived at the hospital, DD was, as Consultant Psychiatrist F said, "settled … and quite calm."
31. With DD's agreement Midwife C performed a physical examination in the presence of the female police officer. DD had asked that the men present should leave which they did. DD was cooperative during the ultra sound scan and when prompted looked at the screen to see her baby. She agreed to blood sampling. Urine was collected with her agreement. She answered all the questions asked of her although some of her answers were thought not to be completely accurate.
32. A picture emerges of DD being willing to comply with medical assessments and interventions so long as she knows there is some associated structure and authority. As Consultant Psychiatrist F said, "Once it was clear that the professionals had a legal remit, she (DD) did not object in any physical way." He also said there was "no evidence she has ever required restraint although she has had a number of interventions she did not agree with." Consultant Psychiatrist F's sense is that DD had some very unpleasant experiences in childhood and used passive ways to avoid getting into trouble.
33. In relation to the impact upon DD of the knowledge that her wishes and feelings are not being given effect to, Consultant Psychiatrist F said that what had occurred on 8^th April did not, so he believed, cause any change in her health. There had been no evidence, from what he had seen of DD being overly distressed as the result of being taken to hospital. On the balance of probabilities although there was some short term distress, Consultant Psychiatrist F did not believe there would have been any long term impact; and there is nothing to suggest DD would have a different reaction on a subsequent occasion.
34. Against the background of her obstetric history, I have no difficulty in assessing DD's views about avoiding any form of ante natal assessment as both irrational and irresponsible. To do other than undergo examinations of the kind suggested by Consultant Obstetrician A would seem to me to be pure folly. There could be no justifiable basis, in DD's best interests, for avoiding the sensible, clearly thought through and carefully planned medical assessments as proposed by the Applicants. As Consultant Psychiatrist F said, "the potentially significant risk for DD is that if nothing is done, she could go into spontaneous labour, without a midwife, looked after only by BC." Consultant Psychiatrist F referred to the events of 2011, when BC sat watching for a while whilst DD was fitting. On that occasion her condition became so grave that intensive care was required. Any right thinking individual would act so as to ensure, as far as possible, that a similar situation of substantial risk did not recur.
35. It is also a highly relevant consideration, in the 'best interests' decision that Consultant Obstetrician A's overall approach, so well described in evidence, is to strive to gain DD's trust and confidence. He said it was his aim to explore "her hopes, ideas and expectations" in relation to delivery of her baby. Consultant Obstetrician A's ambition is to "find a degree of compromise and middle ground." He did not propose "under any circumstances" to employ either sedation or 'theatre' in the plan for an ultra sound scan. His starting position would be "persuasion; let us do what we can to help rather than using any form of restraint." Later Consultant Obstetrician A added there would be no question of "holding DD down and performing a scan or of catheterising her." He hopes to use reasoned argument. He would not impose and DD was unlikely to need a vaginal ultra sound scan. If one were indicated, it would "have to be with her agreement." Consultant Obstetrician A was content for those indications in evidence to be incorporated within the care plan. He also explained that as he envisaged it, the need for restraint would only arise if there was a prospect of some public order offence. Restraint, he reasoned, would not be helpful in gaining a working relationship with DD. He reiterated that when "she knows there is a degree of authority, she will comply."
36. Thus it seems to me that there is every potential for DD's wishes and feelings to be very largely accommodated in relation to individual clinical assessments once she realises there is underlying authority.

Finally

37. Finally, I should just say this. On the basis of the written documentation, there was a sizeable dispute between the Applicants on the one hand and the Official Solicitor on the other. Mr Griffiths' report is dated 16^th June. It became available, as I understand it, late during the afternoon and thus only one working day prior to the hearing. Mr Griffiths was unable to listen to Consultant Obstetrician A's evidence in chief during the morning of 18^th June because of clinical commitments. He did join the hearing via a telephone link in the afternoon to hear Mr Horne's cross examination of Consultant Obstetrician A.
38. Had it been possible for the two consultant obstetricians to discuss the case in advance of the hearing, in all probability, a great deal of court time would have been saved.
39. Prior to the two hearings listed before Cobb J in July, at the very least there should be a telephone discussion between all the experts. Ideally they should meet to discuss any issues between them so as to identify areas of agreement and disagreement. If the discussions are by telephone, then they will be recorded in the usual way. If the meeting is face to face then arrangements must be made for a minute to be taken.
40. Accordingly, in addition to Mr McKendrick's admirable draft order provided on the day of the hearing, there will be a direction, pursuant to r.128 of the Court of Protection Rules 2007 requiring the psychiatrists and obstetricians to discuss the expert issues in the proceedings; and, where possible, reach an agreed position on those issues. There should also be a prepared statement, following the meeting(s), identifying those issues upon which they agree and those on which they disagree together with a summary of their reasons for disagreeing.