Mental Health Solicitors

By Kerri Dixon Jones

Today on the 15 February 2011 the Court of Protection sitting at the Royal Courts of Justice met to consider a case of a 21 yr old woman (P), suffering from learning disabilities who is due to deliver her second child tomorrow by elective Caesarean.

The Court has a duty where a person lacks capacity to make a decision in P’s best interests if called upon by a party to do so.

The mother of P (Mrs P) seeks a declaration that it be lawful that her daughter P undergoes tubal litigation thus rendering her sterile.

It had been hoped by the Applicant (Mrs P) and the NHS Trust involved that this application could be decided today thus enabling the NHS trust to carry out the tubal litigation at the same time as the caesarean on 16 February 2011.

The parties had agreed prior to the hearing that not all the information was available for the case to be heard substantively. The Official Solicitor requested an adjournment of 8 weeks to allow for the instruction of expert evidence so that the Court was able to fully consider the issues of:

1. Issue based capacity of P; whether P has the capacity to make decisions regarding the medical procedure of sterilisation;
2. If it is found that P lacks capacity, whether it is in her best interests to have such a procedure;
3. What, if any action does the Court take? The Court would be asked to take into consideration the least restrictive option when considering action.

As all parties were in agreement that this case could not be heard substantively today, it become acutely clear that the issue in regards to whether tubal litigation could take place at the time of the planned elective caesarean was an instance of the applicant ‘missing the bus’ according to Mr Justice Hedley. Mr Justice Hedley went on to ask whether this rendered proceedings pointless until ‘the next bus came along’. Those acting for the Official Solicitor and NHS Trust acknowledged this, however both parties agreed that this did not render the current proceedings pointless and asked that a decision be made on this application regardless of whether this meant that a future procedure would take place independently of the caesarean.

It was clear that the case should take on a new direction and it was not as urgent as already anticipated, although time remained an issue as Mrs P feared her daughter would fall pregnant a third time quickly after giving birth.

Mrs P gave evidence in court that whilst the family propose to cope with her daughter’s second child who is due to arrive tomorrow, the family does not feel in a position to offer support with further pregnancies which would inevitably result in local authority intervention and the possible indefinite removal of any future children.

Justice Hedley gave summary judgement. He recognised that the ideal time for any intervention would have been at the time of birth; however the Court did not have the evidence before it today to make such a decision and was satisfied that the requirements of the Mental Capacity Act had not been met at this time.

Although the Court was now potentially considering an independent intervention which carries additional risk, Justice Hedley approved the directions order to see if there remains a real issue to be considered.

An underlying element of this case and one that proved of interest to Mental Health and Capacity practitioners is that the case was heard in open court with members of the public and press present. The Court of Protection had been considered one of the last remaining private courts, along with First-tier Mental Health Tribunal where the presumption in mental health cases is also that applications shall also be considered in private.

The Judge in the case of P considered that the substantive hearing be set for a date in 8 weeks and that it be heard in open court.

Justice Hedley went on to say that it seemed to be that the case ought to be heard in public as the public should have an understanding of the Court’s powers but also to allow a real opportunity for the public to understand the debate. Justice Hedley stated that this is a matter of substantial public interest which the Court should not impede other than to anonymise proceedings.

This begs the question, if Court of Protection proceedings can be heard in open court where highly sensitive information is discussed in relation to vulnerable parties as a matter of public interest, how should the Courts differentiate this case from applications before the First- tier Mental Health Tribunal where a public hearing is sought and arguably similar circumstances may apply?

The Upper Tribunal recently considered the case of AH v WLMHT where the applicant who is represented by Duncan Lewis is seeking a public substantive hearing before the First-tier Mental Health Tribunal. Comparing this to the case of P as discussed, both involve questions of capacity surrounding vulnerable persons, medical and sensitive information and include powers of the court which ought to be an issue for public scrutiny.

If the powers of the Court of Protection are of such importance that public scrutiny should be permissible in certain cases so as to merit an open court, then it is foreseeable that the powers of the First-tier Mental Health Tribunal that determine peoples’ civil rights should be afforded the same opportunity.