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@mcadorset #mcaconference10. Case Law Round Up. Sue Farmer. (2018) EW COP 28 RE SJ Application by X NHS Trust for the authorization of medical treatment in relation to SJ-An inpatient. Admitted to X hospital Nov 2017. Dec 2017 Case before Cohen J.
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@mcadorset #mcaconference10 Case Law Round Up • Sue Farmer
(2018) EW COP 28 RE SJApplication by X NHS Trust for the authorization of medical treatment in relation to SJ-An inpatient
Sister filed a significant number of statements but did not attend court
The case ran between 2011 and 2016 • 3 Judgements in respect of TP within the proceedings • Evidence presented to the court included: • A report from the GP who had known her for 17 years and who was concerned that she no longer regularly attended the surgery for medication checks • Evidence from an independent Social Worker • Evidence from TPs sisters which was described as poignant and compelling • TP did not attend court despite being given opportunities to do so • FW declined to take part in proceedings
TP was removed from FWs care • The court heard about FWs coercive and intimidating behaviour towards TP (derogatory comments causing psychological damage) • FW became dependent on TP in a negative way although she did not accept or see the concerns of others and did not want to lose him • The fact that a critical doctors appointment was missed was a pivotal factor
TP was removed from FWs Care • She was placed in a setting where she would be living with other people • It is likely that she was struggling on her own and it was said that she needed company all the time • This was against TPs expressed and clear wishes and she continued to mourn for the fact that she was no longer with FW-without this she will not be able to move on
A difficult Judgement to make • On removal from FWs home TPs mood initially deteriorated • “The court is entitled to intervene to protect a vulnerable adult from risk of future harm, the risk of future abuse and exploitation as long as there is a real possibility rather than a merely fanciful risk, of such harm” • Sir James Munby said ” What good is making someone safer if it merely makes them miserable”
Why had this case not been taken sooner? • The official solicitor questioned why this case was not brought before the CoP sooner……… • Hindsight is a wonderful thing • However if it starts to look as though there will be a need to go to CoP start collecting and documenting evidence as a matter of good practice.
A, B & C v X, Y & Z 2012 • Judge was asked to consider capacity to1) marry; (2) make a will; (3) revoke or grant an enduring or lasting power of attorney; (4) manage his affairs; (5) litigate; • X had been married for 56 years, he was a father grandfather husband and he run his own business • In April 2008 his former wife died. He had 3 adult children A B & C. They were a close and trusting family. • The family became concerned about his increasingly poor memory and tendency to forget things He was diagnosed with dementia in May 2008 T
September 2008, he executed lasting powers of attorney in favour of A, B and C. • July 2010 Z was employed as a full time carer to X, by October 2010 X wanted to marry Z • Family relationships deteriorated and as a result and A B & C brought the litigation. • The Judge felt that the A B & C were “wholly honourable” in their intentions as was Z
An individual has capacity to marry if they are able to understand, retain, use and weigh up information as to the reasonably foreseeable consequences of marriage. One consequence is that upon marriage the individual’s will is revoked. The individual must only be able to understand the nature of marriage and the duties and responsibilities attached to it.
Whether any decision that he might take to marry is wise or unwise, whether it leads to happiness or regret, is simply none of my business
The Judge declared that he would have capacity to marry. He “may” have capacity to make a will but due to the fluctuating and deteriorating nature of his condition this would have to be accompanied by medical evidence. Likewise he “may” have capacity to revoke a Power of Attorney and to create a new one but again only if accompanied by medical evidence.
In 2013, he executed a will leaving his partner £300,000 and a right to reside at the property they had lived in together, which was owned by him, for two years after his death. The remainder of his estate, which is valued in the region of £1.8 million, was to be divided equally between his three daughters Any marriage would revoke this will.
The Judge ended by asking……. • That due to DMM having Alzheimer's which was a deteriorating condition the family and SD should make efforts to come together for his sake.
Following her death the family discovered that she had married Mr Folan
Damages awarded • £130.00 per day making a total of £15,470.00 • There were other damages awarded in respect of the other claims.
However…………. • The MCA and DoLS has changed beyond recognition since 2011 with the “Acid Test” definition of what is a deprivation until 2014. • The fact that their practice was not MCA Compliant • and the Principles not followed is a significant concern and a lesson for us all.
And finally another gangrenous foot! • A London NHS Foundation Trust and E Nov 2018 • E is a 49 year old man with a long standing diagnosis of type 2 diabetes and cardiac failure • Severely gangrenous left foot for which amputation is the recommended treatment • No diagnosed mental disorder
Capacity???? • Not meet the criteria for depression or psychosis • Not suicidal • Does not seem to understand that the treatment is deemed essential • Seemed unable to process the information and understand the information given to him about the difference between a leg injury which he had a few years ago and the current gangrenous leg
Scored poorly on cognitive testing • Poor processing of information • Poor attention and reduced memory • Higher executive deficits leading to the conclusion that he most likely the cognitive impairment is vascular • Most likely caused by the narrowing of the blood vessels in the brain • Therefore he was deemed not to have capacity to make the decision about his leg due to the cognitive decline
Two options available: • Amputation which will reduce the risk of fatality although there is still a mortality risk • Conservative treatment which will almost inevitably result in death
E does not want to die • His views are mixed and he has displayed various views and behaviours at different times but which are internally inconsistent. • His own solicitor even struggled to elicit his views
On balance Es wishes and feeling lacked consistency • The Judge said that he agreed with Dr TG's conclusion that, • "on balance, and with a significant degree of hesitation and caution, I believe, on the evidence currently available, • that E's best interests are best served by proceeding with the proposed amputation"
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