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You’ll find us all, doing the Lambeth Walk (oy!)

 

Gosh, it’s been ages.  Not been any juicy cases to write about, as the big beasts of the High Court are all on holiday, but this is an odd one.

 

It is a Court of Protection case, involving a woman who lacked capacity and whether she should be transported back to her home country of Colombia, interminable wrangling about the costs of transporting a wheelchair, a Court hearing where nobody shows up much to the Judge’s chagrin, and an eventual description of the approach of the public bodies as ‘verging on petulant’  with costs orders following.

London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 (31 August 2018)    

http://www.bailii.org/ew/cases/EWCOP/2018/14.html

 

  1. The documents do not reveal a clear picture, but it appears at least likely that P may have been ready for discharge in 2014; self evidently by the date of P’s assessment on 9 January 2017 P was clinically stable and ready for discharge. In fact I am certain that those conditions arose much, much earlier. It should be recalled that the original application to the Court (made by P’s RPR) was itself an application dated 20 December 2016, challenging P’s deprivation of liberty, pursuant to section 21A of the Mental Capacity Act 2005, made out of frustration because, despite the local authority and the Lambeth CCG supporting P’s wish and desire to return to Columbia, they had simply failed to progress it. “Support” has always been offered, and is still, but when something concrete had to be done, they have been found wanting. Even with the institution of proceedings, it has taken a year to achieve what should have been organised much, much earlier, and significantly, proceedings should have been, and were, unnecessary; all of this could and should have been achieved outside any application.

 

Bear in mind that this woman was ready for discharge in 2014 and the unit she was in was costing £2,000 per week, there ought to have been at the very least a financial incentive to move this along and get her back to Colombia where she wanted to be.   It has cost nearly a third of a million pounds to keep someone in a place where she didn’t want to be, when she could have gone back to her home country.

(Having been rebuked on Twitter during the World Cup for conflating Columbia – the city, with Colombia the country, I am spelling it correctly during this piece, although the judgment does not)

 

The Judge captures the human misery of this awful situation very well.

 

  1. There has never been any formal provision supporting P’s need for Spanish speaking staff, which at best has been provided on an ad hoc basis. P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing.

 

  1. Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.

 

Some of the hearings in this case were just a debacle

 

 

  1. At the hearing on 16 November 2017, very distinct progress towards repatriation had finally been achieved. Frustratingly, there were however, still significant details missing, not just an interim plan if there was a delay, but there was no detailed transition plan. I have seen some of the documents in relation to this and they are depressingly scant; frankly, they are unedifying. I entertained the hope, since the remaining matters seemed really very straightforward, that it might even have been possible to agree a draft order encompassing the transfer to Columbia and the deprivation of liberty involved in that move. Accordingly I felt able to make qualified declarations (including being transported to Columbia). But a detailed and realistic transfer plan was obviously still necessary. A proposed draft transfer schedule was provided for that hearing, but it was a poor document lacking any detail, proposing transfer on 20 December 2017.
  2. In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.
  3. At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day – apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.

 

Bear in mind that the unit was costing £2000 per week, and that the hold-up was the cost of flying a wheelchair that she needed out with her, this is just crazy.  Even if you paid for the wheelchair to go first class, that’s just 2-3 weeks of the unit. And as the Judge rightly noted, it would surely have been cheaper (even ignoring legal costs) to have just bought a wheelchair in Colombia and avoided the flight costs.

 

  1. Finally, on 15 January 2018, it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant entirely responsible.
  2. P left the UK on 25 January 2018 by air ambulance. Her move is described thus:
    1. “The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor could speak Spanish. Upon arrival P “recognised many of her relatives and smiled all over her face.””

Finally, a happy ending to a tragic story.

  1. I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.

 

 

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Video-recording (life and death)

We’ve been having a lively debate about whether or not parents should be able to record their interactions with professionals, and there’s a piece over at the Guardian about it  http://www.theguardian.com/society/2015/jun/17/social-workers-under-scrutiny-parents-camera

 

I’ve today come across a Court of Protection case, decided by Newton J.

 

St Georges NHS Healthcare Trust and P 2015

Neutral Citation Number: [2015] EWCOP 42

https://www.judiciary.gov.uk/wp-content/uploads/2015/06/cop_khan_26.6.15.pdf

 

[There is also a Reporting Restriction Order in place, meaning that the family or patient should not be named. I had been nervous about the link above having a surname in it, but on making enquiries I’m reassured that it refers to one of the doctors involved, not the family surname]

 

This case involved a very ill man who had had a heart attack and due to a long period of time before being revived suffered hypoxic brain damage. There was agreement that if he had another cardiac arrest he should not be resuscitated.

The hospital had applied to Court for a declaration that they be allowed to withdraw treatment (renal replacement therapy) which would have the impact of causing the man to die. The family were opposed to this and were arguing that the man was showing signs of consciousness.  They were saying that he was in a Minimally Conscious State (MCS) and thus he could, though on a very low level, show some responses. The hospital opinion was otherwise and that the man had no responsiveness and thus no quality of life.

The bit of relevance for us is here:-

The family have always properly and steadfastly maintained and argued their position. But for their politely and cogently articulated stance, it may well have been that renal replacement therapy would have been stopped, and P would already no longer be alive. They endeavoured to support their efforts by the taking of video recordings of occasions when they said that P had responded to verbal communication. That position was strongly opposed by the Health Trust who contended concern about the privacy and dignity of other patients and offered the services of the Trust’s medical photographer. Surprisingly the Court was required to make a decision that they were (a) able to do so and (b) could rely in Court on those recordings. In fact those video recordings provided a watershed insight to the proper conclusion in this case. As I say, but for their persistence, and the consequent anxiety of the Official Solicitor I could have so easily concluded on inadequate evidence, as it transpired, a conclusion that would have led to P’s demise.

 

Breaking this down :-

 

A) The family said that they could see signs of response from the man, and the hospital disagreed

B) The family wanted to film the man, so they could prove that he was showing these signs of response

C) The Hospital opposed this, and the Court had to hear argument about it, and decided that the family could film him

D) The film proved what the family were saying, and were vital in the case

E) The man is still alive, because of that filming process

 

You can’t really get a stronger illustration than that.

 

As a result of the Judge seeing the video recordings, he ordered further assessment, that assessment concluded that the man was indeed in a Minimally Conscious State not a persistent vegetative state. Somewhat oddly, that conclusion led to the hospital asking for other treatments to be withdrawn.  (I can’t quite understand this myself, but the case had clearly got quite polarising)

The hearing has lasted five days over a considerably adjourned period, judgment being delivered on the 6th

 It is a very unsatisfactory way of conducting such a hearing. Having seen the very powerful and affecting video recordings of P myself on day 3 it became abundantly clear that further and proper assessment and enquiry was absolutely necessary and essential. As a result Helen Gill-Thwaites, a specialist occupational therapist, continued and carried out the further assessment using the internationally respected assessment process known as SMART. Additionally Mr Derar Badwan, a leading expert in neuro rehabilitation directed the optimum circumstances for that and his own subsequent opinion to be investigated and formulated. Their united opinion and evidence was that at this stage of assessment it was clear, as the family had always contended, that P was in a minimally conscious state. I confess I am very troubled that in apparent response to that expert opinion the Trust’s reaction (without issuing a further application) was to apply to withdraw a whole raft of other treatments. That inexplicable development seemed to me at best to illustrate the widening the gulf between the family and those who were treating P, at best a hardening of mind. That view was fortified further when it subsequently emerged during the course of evidence (when Dr Dewhurst resumed evidence) that Dr Khan, the consultant neurologist responsible for P’s treatment, had recently changed his mind and now considered that P was in a minimally conscious state and had emailed that view to the Trust’s solicitor. All counsel seemed unaware of that development; certainly the Court was, and it is disappointing that this important information should in fact surface in this way. I do not think this represents bad faith but a reflection of the litigation as a whole. As I have already made clear I do not doubt the very great sincerity of the consultants involved in the care of P, but having regard to the Court’s strong presumption in preserving the sanctity of life and of the overarching principle that should be borne in every case with this background it was a surprising development. The law regards the preservation of life as a strong fundamental principle.

 

The Judge describes what nearly happened here (and the absence of the testing process which is recommended in the guidance) as a ‘cataclysmic injustice’.   It is somewhat rare to see the word ‘cataclysmic’ used and to not immediately conclude that the author is  wildly over-stating things.  This is one of those rare occasions when it was in my opinion merited.  [Bracing myself now for my commentator Andrew informing me that it should be confined to natural disasters or large scale tragedies]

This nugget is astonishing – in these cases, the rate of mis-diagnosis (i.e hospitals deciding that a person is NOT in a Minimally Conscious State and getting that wrong ) is 40%. Forty per cent… Of something as vitally important as that.

I have been told in this and in other cases that misdiagnosis (of people who are said to be in a vegetative state but are in truth in a minimally conscious state) occurs in a remarkably high number of cases, the rate of misdiagnosis is said to be some 40%.

 

It is something of a wake-up call – if medical evidence can be wrong about something so vitally important as whether a man would have any awareness if treatment was withdrawn, then we need to be cautious about it when it is something which is less concrete and more speculative  (such as a person’s ability to change, or whether they might or might not sustain a separation from another person or abstain from substances)

 

It is a very interesting and moving case, and once I am sure that the link does not accidentally give away something that it should not, I will share it with you.

 

 

 

 

Reporting restriction orders and anonymisation

 

This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.

A Healthcare NHS Trust and P 2015

http://www.bailii.org/ew/cases/EWCOP/2015/15.html

 

A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case.  When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)

What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.

 

That is so that the argument about article 8 v article 10 can be run with the Press being present and represented.  It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)

 

It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published  – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.

So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?

  1. It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
  2. When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
  3. The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.

 

If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.

On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.

  1. The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
  2. Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.

Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.

To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-

  1. I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

    3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).

    4. It would be a breach of confidence.

  2. In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.

 

 

The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.

  1. Section 1 of the Contempt of Court Act 1981 provides:

    “In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

    Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:

    a) publication addressed to the public at large, as any sections of the public;

    b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;

    c) publication occurs at a time when the proceedings are active.

    So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.

  2. Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).

 

What about common law contempt?

  1. In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc [1997] 1 WLR 926 at 936B-D set out the actus reus to be established:

    “We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”

  2. At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:

    “To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’

  3. The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.