Medical treatment – don’t delay making an application to the Court of Protection

Readers will recall the judicial despair recently articulated by Mr Justice Hayden in Sherwood Forest Hospitals Foundation NHS Trust concerning the delay in bringing the case to court which had serious consequences for the vulnerable person.

Following that case, Mr Justice Hayden has had to grapple with yet another case in which there has been a delay in seeking an early dental assessment of a 17-year-old boy with significant learning disability and severe autism. The case is Cardiff & Vale University Health Board v P.

The case relates to a young man who lives with his parents but receives respite care at the weekends at a specialist establishment for people with learning difficulties. P was given a CT scan in January 2019 in order to establish his dental state. The examination revealed some tooth decay and evidence of impacted wisdom teeth.

From around October 2019, P’s parents had observed him bang his head “violently” and against walls. They believed that his behaviour was in response to dental pain. Some dental assessment was required as long ago as November or early December 2019. But, sadly, an application was only made on 20 February 2020 and the further dental assessment is not due to take place until early March.

Mr Justice Hayden voiced concern that P had been suffering, and “significantly so, for nearly five months. This is little short of an outrage. It is indefensible.”

An additional complication arose in that P was taken to the local A&E in November 2019 by his parents with an obvious bruise to his forehead. P’s parents were concerned that his behaviour was so changed that they feared he had some sort of concussion and may have fractured his skull.

Mr Justice Hayden commented:

“It is, to my mind, self-evident that there was an urgent medical emergency that should have been investigated within hours or days, but in fact there has, as yet, been no CT scan at all. Because there were potentially two pathologies to consider, a variety of disciplines became involved. ... The parents were becoming increasingly concerned, however, and had the sense that they were not being listened to sufficiently.”

Mr Justice Hayden’s palpable concern here is that despite P being surrounded by professionals who were “committed to his treatment and care” nothing has happened. He comments that it is a “lamentable situation” in which P has been permitted to suffer avoidably for many months. And P’s incapacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment.

A failure to share information and a failure to work together effectively

This was the view of the legal team acting for the Health Board. Simply put: the failure to communicate effectively by those responsible for P’s care led to the delay in securing effective intervention. This Mr Justice Hayden observed: “...has now been the conclusion of so many reviews, including serious case reviews, that it has almost become trite.”

He adds that effective communication requires heightened emphasis, in the context of the incapacitous, whose voice can easily and inadvertently go unheard.

Key take aways

Don’t delay with making an application to the CoP – only recently did Mr Justice Hayden share updated guidance on when to make an application to court. You can read our earlier blog on the guidance here.

You risk “judicial dismay”, regulatory and reputational damage for failing to look after the most vulnerable in society – not to mention the financial burden of a claim for damages. In this case, this could be up to five months of pain and suffering P endured. Mr Justice Hayden has been clear in his ex tempore judgment that P’s behaviours appear likely to have been triggered by a “neglectful failure” to address a dental/medical problem.

Do get in touch if you have a tricky Mental Capacity Act or Court of Protection case – we have supported a number of clients on dental treatment cases. We also have a friendly and expert team ready to help.

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