The Court of Protection: a theatre of conflict
A new Court of Protection decision will be of interest to healthcare professionals, commissioners and care homes providers managing conflicting interests. The decision relates to a case concerning G, a 29-year-old woman, suffering from a profound, degenerative neurological condition. G lacks capacity to take decisions in relation to any aspect of her life and welfare. An initial application in this matter was brought on 6 December 2021 by the applicant CCG (now the Integrated Care Board (ICB)), and the final hearing was heard between 13-15 November 2023.
G had spent all her adult life in a children’s hospital and efforts had been made to find alternative accommodation which had been met with resistance, mainly by G’s father (LF). The Applicant’s position was that G is nearing the end of her life and therefore sought to have her transferred to a step-down placement. There was a significant breakdown in the relationship between G’s family and the ICB as a result of LF’s attitude towards G’s medical treatment. There were a number of allegations being made by the family against providers, and likewise providers made allegations against the family. The concerns which were raised by the provider included family tampering with G’s tracheostomy and oxygen levels, these allegations were upheld by the Court. The court during the proceedings concluded that it would be in G’s best interests to move to the identified step-down placement.
In his judgment, The Honourable Justice Hayden comments on several issues, he concludes:
“Whilst the evidence, in my judgement, strongly supports this rationalisation of the family's behaviour, it can only be speculative and it is, accordingly, necessary to confront the fact that any parent or adult who compromises their child's ventilatory support i.e., interferes with breathing, must be regarded as posing a serious risk from which that person must be protected.
It is not difficult to see how trying to obtain appropriate services, good quality care and treatment for a sick child with such a profoundly degenerative condition could so easily become a battle against 'the authorities', by which I mean the ICB, the doctors, the nurses and all of those employed by the State, charged with responsibility for G's care. To an anxious parent, the system will, perhaps inevitably, be perceived as lethargic, bureaucratic, inconsistent and even heartless. As the family themselves accumulated a body of knowledge about their daughter's condition, they would, over the years, have encountered newly qualified, eager, young professionals with limited experience, in whom they may have struggled to reposit their trust and confidence. There are inevitable tensions in these relationships. What has happened in this case however is far beyond this. This was a family utterly determined to engineer the breakdown of their daughter's placement at CH. The lengths that they were prepared to go to are not only alarming, they are quite chilling. Objectively, interference with the ventilatory support must be regarded as creating a risk to life.
The ICB and the Official Solicitor will now have to give careful thought to the future arrangements for G's care. Thought will also have to be given to the scope and ambit of any further proceedings in the Court of Protection. The court itself has become a theatre of conflict. The family's enthusiasm for litigation, as I find it to be, is a different facet of their behaviour within the care home and earlier in the hospital. It is disruptive, calculated to cause distress. It has, at times, degenerated into 'lawfare' and rather than promoting G's welfare, the court process risks becoming inimical to it.”
These proceedings were extremely protracted and lengthy over several years, which is unusual, however, this case once again highlights the difficulties which are often faced by both treating clinicians and patients’ families, who have the same interest but with competing views on how this interest is achieved. The judgment does not refer to mediation therefore it is unclear whether it was considered in this case, however when there is interference from families regarding treatment, this is often a way in which issues can be resolved to avoid Court of Protection applications, saving cost and valuable resources for commissioners and providers. This is a method of resolution which should be considered by those engaged in disputes with patients’ families.