The need to refer cases to the Court of Protection
A recent case where the parents of a 21-year-old woman with Down's syndrome wanted her to undergo a sterilisation procedure highlights the need for medical practitioners to know when to refer cases to the Court of Protection, says the team at 39 Essex Street.
In A Local Authority v K & Ors [2013] EWHC 242 (COP) K was 21 years old and suffered from Down’s syndrome with associated learning difficulties. K’s parents became increasingly concerned about the risks of her engaging in sexual activity and the potential detrimental impact to K’s well-being should she become pregnant in the future. They formed the view that it would be in K’s best interests for her to undergo a sterilisation procedure.
K was reviewed by a consultant obstetrician and gynaecologist who agreed to the procedure. However, when a further opinion was sought, a second consultant reached the opposite conclusion as to the appropriateness of proceeding with sterilisation, primarily on the grounds that an alternative (non-permanent) form of contraception could be provided. K’s parents then indicated that they were considering removing K from the jurisdiction for the purpose of her undergoing a sterilisation procedure. In light of this threat, the local authority issued proceedings for declarations as to K’s best interests as regards contraception/sterilisation.
The local authority and the Official Solicitor jointly commissioned an expert report from a Dr Rowlands. He concluded that it would not be in K’s best interests to take contraception and that it would not be in her best interests to undergo sterilisation as a less restrictive option was available. By the time of the hearing, K’s parents were no longer supporting sterilisation at the present time but did not accept that it was not the “least restrictive option.” Whilst the issues between the parties had narrowed, there, remained therefore, a narrow issue as to the appropriateness of sterilisation at some future point. Mr Justice Cobb expressed the view that it was in K’s best interests that the matter was resolved so far as possible at this stage and that the issues should only be revisited in the future should there be a significant change in circumstances.
In reliance on the report of Dr Rowlands, Cobb J concluded that sterilisation would be a disproportionate (and not the least restrictive) step to achieve contraception for K in the future (absent significant change in her circumstances). In reaching this conclusion he attached particular weight to the permanent nature of a sterilisation procedure and considered that risk management (i.e. supervision) would be better than invasive treatment as it is less restrictive. Further, he was persuaded by Dr Rowlands that there were less restrictive methods of achieving the purpose of contraception than sterilisation, and that in the event of a need for contraception, these ought to be attempted.
At the request of the parties, Mr Justice Cobb went on to give guidance as to the practice and procedure that should be followed in cases involving non-therapeutic sterilisation:
“36. Referral to the Court of Protection in a case such as this could and should always be considered at the earliest moment in accordance with the Rules (see in particular Practice Direction 9E to the Court of Protection Rules 2007, and Para.6.18 and Paras.8.18-8.29 of the Mental Capacity Act 2005 Code of Practice). I take this opportunity to remind medical (and, where relevant, legal) practitioners of the Court of Protection's role in considering a question of non-therapeutic sterilisation. Such a treatment decision is so serious that the Court has to make it. In particular I advise that particular note is made of the process as follows:
(a) The decision of whether someone who lacks capacity to consent should have a non-therapeutic sterilisation is a question involving "serious medical treatment" (see Practice Direction E (PD9E) – Applications relating to serious medical treatment). Non-therapeutic sterilisation is specifically identified in this category (see Paragraph 5(c));
(b) A question concerning non-therapeutic sterilisation of a person who lacks capacity to give consent "should be brought to the court" (Para.5 ibid.);
(c) Where a question arises as to non-therapeutic sterilisation of a person who lacks capacity to consent, the proposed applicant (whether it be carer, local authority or trust), can (indeed I suggest should) usefully discuss the application with the Official Solicitor's department before the application is made (see PD9E para.8): such cases should be addressed to a family and medical litigation lawyer at the Office of the Official Solicitor;
(d) The organisation which is, or will be, responsible for providing clinical or caring services to P should usually be named as a respondent in the application form (where it is not already the applicant in the proceedings);
(e) Proceedings of this kind must be conducted by a judge of the Court of Protection who has been nominated as such by virtue of section 46(2)(a) to (c) of the Act (i.e. the President of the Family Division, the Chancellor or a puisne judge of the High Court) (Para.12 PD9E);
(f) At the first hearing of the application the Court will consider: (i) whether P should be joined as party to the proceedings, and give directions to that effect; (ii) if P is to be joined as a party to the proceedings, decide whether the Official Solicitor should be invited to act as a litigation friend or whether some other person should be appointed as a litigation friend; (iii) identify anyone else who has been notified of the proceedings and who has filed an acknowledgment and applied to be joined as a party to proceedings, and consider that application; and (iv) set a timetable for the proceedings including, where possible, a date for the final hearing.
(g) Note that the hearing will generally be in public, given the nature of the application, although the Court will ordinarily make an order pursuant to Rule 92 that restrictions be imposed in relation to publication of information about the proceedings.
37. Where a declaration is needed, the order sought should be in the following or similar terms:
(a) That P lacks capacity to make a decision in relation to the [proposed medical treatment or procedure]. e.g. ‘That P lacks capacity to make a decision in relation to sterilisation by [named procedure]’; and
(b) That, having regard to the best interests of P, it is lawful for the [proposed medical treatment or procedure] to be carried out by [proposed healthcare provider];
or
(c) That it is not in the best interests of P to undergo [the proposed medical treatment or procedure].”
Comment
This case highlights the importance of ensuring that medical practitioners are aware when it is appropriate (and in some cases necessary) to refer matters to the CoP. Indeed, the general guidance was given by Cobb J explicitly because he was concerned that the first consultant who had reviewed K had seemingly been unaware of the need to do so in this instance.
This case stands in interesting contrast to that of An NHS Trust v Mr and Mrs H & Ors [2012] EWHC B18 (Fam), in which Peter Jackson J was invited to endorse an advance care plan in respect of a young child whose medical situation at that present was not yet – but would in due course inevitably – be very serious. In that case, whilst Peter Jackson J noted that it was appropriate that the matter had been brought to Court whilst KH was in relatively good health such that the issues could be fully explored in a way which would not have been possible if the parties had waited until he had deteriorated and been forced to make an urgent application.
However, the corollary of that approach was that the medical issues had not fully crystallised. He went on to hold that there were difficulties with the request that the Trust had made for a declaration that that it was in KH’s best interests to have medical treatment withheld in the circumstances described in the care plan, as the Court’s function was to make decisions about specific issues on the basis of a factual substrata. Accordingly, he held that open ended declarations should be avoided by judges as they might need to be revisited in the future, relying in so doing upon Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181 at paragraphs 117 and 188 per Wall LJ. Accordingly, he took the approach of identifying the treatment issues that needed to be determined and that were not likely to change over time and in respect of which declarations could be made.
In such a case as that before Cobb J, where the declaration was that it was not in P’s best interests for a particular non-therapeutic procedure to be undertaken, the scales are perhaps rather more easily tipped in favour of certainty at an earlier stage.
This article was prepared by the Court of Protection team at 39 Essex Street.