This is a case decided by MacDonald J
An NHS Trust v D (A Minor : Out of Hours Application) 2021
D is 16 years old and living in Local Authority care. The Judge describes D as being ‘looked after’ and then in the same paragraph says that the Local Authority have parental responsibility for D. So we have to assume that the Local Authority have a Care Order or Interim Care Order for D, although that is not made explicit. D’s parents are not involved in her life (and to pre-empt questions, I don’t know from this judgment why this is or why D does not live with them)
“She reportedly took 16 tablets of 500mg of paracetamol at her care home at 0400am on the 4th October 2021. There was a long delay in presentation and she arrived in the department at 15:32. She refused investigations and she refused the antidote treatment for paracetamol toxicity. She was seen by the CAMHS team and was deemed to have capacity but they wanted to keep her in overnight to “cool off” and to reassess in the morning. The patient left the department at 20:00 and is back at her children’s home with her key worker and is refusing to come back.”
The NHS Trust made an application at 2.50am for D’s liberty to be restricted in that she would be taken to hospital and given treatment for this overdose.
Following D leaving hospital after refusing treatment, and as I have noted, the Trust submit that the local authority were less than helpful when contacted by the Trust, a duty solicitor for that local authority indicating that, notwithstanding the situation I have described above, no further action would be taken by the local authority save for observing D in the placement. I am conscious that the local authority is not represented before the court, but on the face of it this is an extraordinary position for a local authority with parental responsibility for a child to have taken in light of the level of concern expressed by D’s treating doctors.
We obviously don’t know whether the LA would dispute that, but it does seem extraordinary.
Looking at it just from the facts that we have, if the LA have a Care Order, they could use their powers under s33 to authorise the treatment, which would potentially be life-saving, without parental consent. It is clearly an emergency.
However, it becomes a little more complicated when dealing with a 16 year old who has refused treatment. If D had been unconscious, and the doctors wanted consent to treat her, then I would consider it wholly reasonable for the LA to have given that consent under section 33 of the Children Act 1989 in the emergency circumstances of the case.
Would section 33 allow the Local Authority to authorise the medical treatment where the 16 year old was not consenting and objecting to it, and where it would involve the 16 year old being forcibly taken to the hospital for treatment? On the wording of section 33, possibly. But of course, the action to be taken is a deprivation of the child’s liberty, and Local Authorities are only able to do that under the secure accommodation provisions of s25 of the Children Act 1989 or where the High Court has authorised it under the inherent jurisdiction. s25 doesn’t feel like a good fit here. This is not about the ACCOMMODATION being the only suitable place for D, it is about D being admitted to hospital for treatment.
So my gut feeling would be that the LA could not have consented to D being forcibly removed and moved to hospital for treatment, although they could have consented to the treatment itself. (Although they have duties to take D’s views into account on the latter, it would be possible to override them)
I think what I would probably have done is explained that to the Trust and lawyered up to get to the hearing to either support the Trust’s application or make my own application under the inherent jurisdiction for authorisation to deprive D of her liberty so that the treatment could be undertaken.
Having said that, an adult with capacity could in D’s position have refused treatment and discharged herself from hospital just as D has done, and the hospital/Court would need to have evidence to dislodge the presumption of capacity under the Mental Capacity Act 2005. The MCA doesn’t apply to people under 16, but D is OVER 16. And the MCA says specifically :-
(3)A lack of capacity cannot be established merely by reference to—
(a)a person’s age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
Which means that you cannot determine that D lacks capacity to make the decision that she does not want treatment even if that might mean pain, suffering or ultimately death BASED merely on her being 16 rather than older, OR that she’s taken what objectively seems like an unwise decision in taking so many paracetomol.
So I don’t think it is straightforward. I can perfectly see why the Court would make the decision authorising the forcible treatment of D, and I can also perfectly see why with a ticking clock and the Court dealing with it at 2.50am D ended up with nobody arguing against this action or the intrusion into her autonomy that it represents. The Court clearly considered it carefully. I can’t really imagine any Judge deciding the case any other way. If the time factor hadn’t been such an issue and if D had been represented and was giving cogent instructions that she did not want the treatment, it might have been a more difficult scenario but I think that the outcome would have been the same.
Within this context, the following legal principles inform the discharge of the court’s duty:
- With respect to the question of competence, a child will be considered Gillick competent in respect of a decision concerning medical treatment if he or she has achieved sufficient understanding and intelligence to understand fully what is proposed (Gillick v West Norfolk and Wisbech Area Health Authority and Another  1 FLR 224). With respect to children over the age of 16, the court has the power to override the decisions of a Gillick competent child in this context where it is in the child’s best interests for it to do so (see Re W (A Minor)(Consent to Medical Treatment)  1 FLR 1).
- Within the context of the foregoing legal principles, I accept Ms Khalique’s submission that in D’s case the balance falls overwhelmingly in favour of authorising treatment capable of saving her life, should such treatment be clinically indicated.
- As at 2.45am this morning the court has before it evidence that D may have taken an overdose of paracetamol that is potentially fatal if she does not receive treatment and evidence that the window for optimum treatment is closing rapidly. In light of the extreme urgency and the potentially fatal consequences for D if steps taken to treat her are not taken, I am satisfied that the orders sought by the Trust should be granted. Whilst I am conscious that I take this step in respect of D having heard only from the Trust, I am satisfied given the extreme urgency of the situation that every minute spent putting in place arrangements for D to be represented moves D further away from the treatment she required to avoid liver damage, or even death.
- Within this context, I am satisfied that the following factors demonstrate that the orders sought by the Trust are in D’s best interests:
- In the circumstances, I am satisfied that it is in D’s best interests to make the following orders:
- That is my judgment.