North Somerset Council v LW and others [2014] EWCOP 3 (Keehan J)

Summary

This case considers circumstances in which the court will depart from the ordinary rule that there be no order for costs in welfare cases (save that the relevant statutory body should pay 50% of the Official Solicitor’s costs, in medical treatment cases).

The case concerned a young woman (LW) who was 24 years old and diagnosed with hebephrenic schizophrenia. The case first came before the court on 11 April 2014 when LW was in the late stages of pregnancy. North Somerset Council applied for permission under the inherent jurisdiction not to disclose the care plan for the unborn child to LW, namely removal into care at birth. At the hearing an issue arose as to whether an application should be made to the Court of Protection to permit the hospital at which she was due to give birth to perform a caesarean section if it were established that she lacked capacity to consent to medical treatment. Baker J therefore directed that the University Hospitals Bristol NHS Foundation Trust (“UHBT”) to attend the hearing listed for 15 and 16 April 2014.

On 15 April 2014 the judge dealt with the application under the inherent jurisdiction and an application for a restricted reporting order. UHBT did not attend and was not represented. It was only when the judge threatened to telephone the Chief Executive of UHBT in open court to ask why the order of Baker J had not been complied with that counsel was instructed. The balance of the hearing on 15 April and the 16 April and 23 April dealt with the COP application.

At the hearing on 23 April 2014 all parties agreed that LW did not lack capacity to consent to medical treatment, including an elective caesarean section. No order was made on the Court of Protection application. An issue arose as to costs and the judge directed that the parties file written submissions.

On 1 May 2014 LW gave birth by elective caesarean.

The Official Solicitor and the local authority both sought an order for costs against one or more of the hospital trusts. The judge held that no substantive criticism could be made of the Third or Fourth Respondents but that the position was different in respect of the Second Respondent (UHBT).

In a judgment that was highly critical of the behaviour of UHBT, the judge held that it had fallen well short in meeting their duties to LW and her unborn child for the following principal reasons:

  1. No comprehensive plan or contingency plan had been devised until after the court had been seized of the matter;
  2. There was an unacceptable delay in arranging and/or undertaking a capacity assessment of LW’s ability to consent to medical treatment;
  3. On the evidence of the midwife the unborn child was at serious risk of death or very serious harm;
  4. In the light of that evidence and evidence given by the midwife about a meeting on 7 April which concluded that an application needed to be made to the COP to seek authority to give medical treatment to LW, the judge did not understand why:
    1. An urgent capacity assessment was not undertaken on 9, 10 or 11 April; and
    2. If it found LW lacked capacity to consent to medical treatment, an urgent application was not issued in the CoP.
  5. Until the court was seized of the matter, no psychiatrist and in particular no psychiatrist familiar with LW, had been invited to attend the capacity assessment;
  6. The response of the Trust to the order of Baker J of 11 April was wholly inappropriate and unacceptable (UHBT did not apply to discharge or vary the order but informed the local authority that it did not intend to attend or be represented); and
  7. There appeared to have been little or no planning or communication between component parts of the trust responsible for LW’s medical care and/or between the clinical staff and its legal department and certainly none which reflected the complexity, seriousness and urgency of the matter.

The cumulative effect of the above factors was that part of the hearing on 15 April 2014 and the whole of the hearing on 16 April 2014 were completely ineffective. It followed the court was justified in departing from the general rule that there be no order as to costs.

The judge ordered that UHBT pay the whole of the Official Solicitor’s costs of 15 and 16 April which were ineffective for the purposes of the CoP application due to the failings of the trust. The hearing on 23 April was effective and the judge therefore held that the normal rule should apply and UHBT should pay half of the Official Solicitor’s costs for that hearing.

UHBT was ordered to pay one half of the local authority’s costs for the hearing on 15 April and the whole of its costs for 16 April.

Comment

The case is a cautionary tale for parties who consider that they do not need to attend court hearings where they have been directed to do so. UHBT’s overall position that it was awaiting a capacity assessment and would make an application to the COP following that assessment if necessary was defensible but its failure to comply with the initial order to attend court and a lack of awareness of the apparent urgency of the case led to a highly critical ruling and substantial cost consequences. While there is a presumption of capacity under the MCA 2005, when an issue as to capacity is raised, the requirements of the MCA and Code of Practice must be diligently followed – whether or not the case happens to be before the Court of Protection at the time!