The case concerns "A", a 25-year-old woman with mild learning difficulties, autism spectrum disorder, and epilepsy. A has been the subject of Court of Protection proceedings for five years and her history has been set out in several published judgments. The current case was brought to the court by "B", A’s mother, who made an application for A (who currently resides in a care home) to be returned to B’s care. Interestingly, the local authority, the NHS Trust, and the official solicitor acting on A’s behalf all opposed B’s application.
Read the case RE A (Covert Medication: Residence) here.
The context
A had been diagnosed when she was 18 with primary ovarian insufficiency (POI), meaning that her ovaries and uterus were underdeveloped and she hadn't gone through puberty. The expert instructed in the case, Dr X, (who had also been A’s clinician – noted by the judge and the expert themselves to be a less than ideal circumstance), explained that should A remain untreated for her POI, she would "suffer significant physical and mental health problems", would be at risk of premature death, and also would be denied the opportunity to grow into an adult woman. Treatment would result in success.
But A, despite receiving encouragement from her grandmother, refused to take her oestrogen tablets and Dr X felt that it was B’s influence preventing A from agreeing to take the medication. Dr Ince, the consultant psychiatrist, felt that A’s removal from B’s home would be the only option if B was refusing the proposed treatment for A.
In a judgment of 18 June 2019, it was the decision of Her Honour Judge Moir to remove A from B’s care, and later all contact was suspended between A and B. An order was later made in a closed hearing that it was in A’s best interest to be administered hormone treatment covertly. Surprisingly, neither A herself nor her grandparents noticed that A was undergoing puberty. B, prohibited from contact with A, also was not made aware of this.
Mr Justice Poole decided to inform B that A had been administered hormone treatment covertly following a closed hearing and she had now gone through puberty. B’s response was positive. Mr Justice Poole reinstated contact between A and B. B subsequently made an application for A to return to B’s home.
During the case, B was able to confirm that, while she would not administer the medication herself to A, should A return to her home, she was prepared to collaborate with the administration of it. No progress had been made to encourage A to agree to take the medication voluntarily, although B had stated that she believed she could persuade A to voluntarily take it, should A live with her again. Dr X agreed that A voluntarily taking medication was the best outcome, but the "elephant in the room" was the part B might play in this.
Mr Justice Poole found B to be an "evasive" witness with an "unwillingness to face up to the truth". A’s social worker also gave evidence that A had deteriorated since face-to-face contact with B had been reinstated.
B’s position was that there should be a trial period for A at B’s home, with B taking the lead in convincing A to voluntarily take the medication. The local authority invited the court to refuse B’s application and proposed that A could move to a supported independent living (SIL) placement. The NHS Trust also invited the court to refuse B’s application, and to continue the current best interests orders in respect of residence, care, contact with others, and covert medication. The official solicitor also held that B’s application should be refused and a SIL placement identified for A, with overnight contact with B considered, but the current contact to remain in place until a further hearing could take place.
The decision
Mr Justice Poole noted that the decision about residence could not be separated from the consideration of the issue of continuing covert medication. He also noted the need to think carefully about what, if anything, to tell A. There's a concern about how A’s health and welfare might be impacted should she discover that she's being covertly medicated and a risk that she'll stop eating or drinking. The judge also expressed a concern that should B "lose hope" of A returning to her, she may very well inform A herself that she has been covertly medicated.
Intertwined with the complex decision in respect of where A should reside, was the difficult reality that while "hormone treatment is good for A’s health… it comes at a heavy price in terms of infringement with A’s human rights". Now that A has undergone puberty, the most significant risk element of the anticipated harm has been overcome, although future health risks did remain should A stop taking medication. Therefore, the balance of the best interests has changed since the previous orders were made.
Mr Justice Poole ultimately ordered that it's in A’s best interests to return to B’s care, for covert medication to cease, for A to be told that she has been covertly administered HRT and that this has been beneficial for her health, to allow B the opportunity to persuade A to continue to take this voluntarily, and for support for A to be provided in the community while she lives with B.
Comment
It's perhaps surprising that in making this decision, Mr Justice Poole has ruled contrary to the positions of not only the local authority and the trust, but also the official solicitor. He acknowledged that, whichever decision was made, there would be both positive and negative consequences for A, and that the relationship between A and B is "deeply troubling and has caused significant harm to A". But conversely, this is her family life to which A wants to return, and there are, in the court’s view, measures that can be taken to protect A from the "most harmful aspects".
Ultimately, the benefits of ending A’s deprivation of liberty and the interference with her Article 8 rights, and of avoiding the risk of an unmanaged disclosure of the covert medication to A, outweighed the risks of returning A to an "unhealthy relationship" with B.
The case is a reminder of the complexities that intertwine between each decision the Court of Protection must make, and that there must be constant consideration given to whether severe restrictions can be justified in the pursuit of benefit to persons who lack capacity.
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