The document discusses several cases and legal issues related to capacity, safeguarding, Do Not Attempt CPR orders, deprivation of liberty, and identifying representatives for unbefriended patients. It also provides updates on new guidance related to self-neglect in the Care Act 2014 and an upcoming case on DoL in intensive care being appealed.

1. @BJhealthlaw

2. @BJhealthlaw
News and case law update
4 May 2016

3. @BJhealthlaw
• safeguarding, self neglect and MCA -
obstructive families and assessing capacity
• DNACPR - futility and best interests
• weight on P’s wishes – CS v an NHS Trust
• Re X – the ‘streamlined’ COP process, and
the ‘unbefriended’
• news – DoL in ICU
• no news – the Law Commission on DoL

4. @BJhealthlaw
“Safeguarding means protecting an adult’s
right to live in safety, free from abuse and
neglect” (14.7)

5. @BJhealthlaw
Cf - “People have complex lives and being
safe is only one of the things that they want
for themselves” (14.8)

6. @BJhealthlaw
“people must be assumed to have capacity
to make their own decisions” … (14.55)

7. @BJhealthlaw
“Mental capacity is frequently raised in
relation to adult safeguarding. The
requirement to apply the MCA in adult
safeguarding enquiries challenges many
professionals and requires utmost care,
particularly where the adult has capacity
for making specific decisions that
nevertheless places them at risk of being
abused or neglected” (14.58)

8. @BJhealthlaw
• Care Act 2014 and statutory guidance –
‘abuse or neglect’ now explicitly includes
‘self neglect’
• duty to assess needs (s9) unless adult
refuses (s11(1))

9. @BJhealthlaw
• BUT the local authority may not rely on
subsection (1) (and so must carry out a
needs assessment) if…
– (a)the adult lacks capacity to refuse the
assessment and the authority is satisfied
that carrying out the assessment would be
in the adult’s best interests, or
– (b)the adult is experiencing, or is at risk
of, abuse or neglect.

10. @BJhealthlaw
• safeguarding ≠ capacity
• very little practical guidance on the sharp
edge
• instinct to generalise
• risk of ‘organisational abuse’ / liabilities
• inevitable tension – get support and
advice early!

11. @BJhealthlaw
• D (91) – discharged self from Hospital
against advice after heart attack 2005 –
supported by son
• D continued to refuse all social care / GP
visits
• 2011 – D noted to be wandering /
unkempt – often returned home by police
/ ambulance - confused

12. @BJhealthlaw
• Son always attended, but refused /
obstructed services – later bringing
proceedings / complaints
• 24.12.12 - D admitted with severe
pressure sores, very sick, emaciated and
frail
• Died 12.1.13.

16. @BJhealthlaw
Janet Tracey v Cambridge University
Hospitals FT (2014)
“doctors should be wary of being too ready
to exclude patients from the process on the
grounds their involvement is likely to
distress them”

17. @BJhealthlaw
• discuss with patient their wishes as soon as
possible
• review when circumstances change
• failure to consult with patient can breach
Article 8 (right to private and family life)
• NHS Constitution: “no decision about me
without me”
• keep good record of all discussions

18. @BJhealthlaw
• doctor decides what options clinically
indicated
• doctor offers treatment options explaining
risks/benefits
• patient decides which treatment to accept (or
a best interests decision is made)
• if a doctor decides a form of treatment is not
appropriate then he/she is not required to
provide it (although offer second opinion)

19. @BJhealthlaw
“[t]here is nothing in the case of Tracey or the Strasbourg case
law to suggest that the concept of human dignity applies any the
less in the case of a patient without capacity” (paragraph 45).
Winspear v City Hospitals Sunderland NHS FT (2015)

20. @BJhealthlaw
• is DNACPR decision due to ‘futility’ –
in which case no obligation to offer it
– but still a duty to inform and discuss
with patient

21. @BJhealthlaw
• or due to (covert) best interests
decision? Inappropriate if patient has
capacity – if CPR is available option,
it is patient’s decision. If patient
lacks capacity then needs proper BI
decision process, inc P’s wishes, and
consultation including per MCA s4(7)

22. @BJhealthlaw
• neither having nor lacking capacity
entitles P to demand treatment to be
offered which is not clinically
indicated
• but neither having nor lacking
capacity obviates obligations on
clinicians to discuss with P / family

23. @BJhealthlaw
• alleged abusive relationship, pregnancy
and intended abortion
• assault by partner causing head injuries –
partner arrested and in custody
• life saving treatment, and capacity to
decide on TOP lost, and unlikely to be
regained in time

24. @BJhealthlaw
• P now says that she wants to keep the
baby (?)
• should wishes before or after loss of
capacity prevail?

25. @BJhealthlaw
• Cheshire West – March 2014
• Re X – Summer 2014
• COPDOL10 – November 2014 – streamlined
process
• Re X – Court of Appeal – June 2015
• NRA – September 2015 – Charles J - role
of rule 3A reps
• but - what do you do if there’s no obvious
(unpaid) rule 3A rep available?

26. @BJhealthlaw
• who can be rule 3A rep where there is no
family member?
• OS will reach ‘saturation point’ quickly
• in reality – no other resource available
• SoS has ‘failed to face up to’ resource
implications

27. @BJhealthlaw
• Charles J therefore ordered:
– Ministry of Justice (which funds the OS)
and DoH joined as parties
– invited parties to take steps to identify
suitable person as Rule 3A rep or identify
an alternative procedure available to the
CoP

28. @BJhealthlaw
• Charles J therefore ordered:
– staying applications pending identification
of practically available alternative
procedure
– parties could apply to lift the stay

29. @BJhealthlaw
• Charles J therefore ordered:
– SoS can provide the necessary funds
(directly commission advocacy / funds LAs
/ LAA / OS), OR
– take a test case back to Supreme Court to
challenge Cheshire West

30. @BJhealthlaw

31. • keep making COP DOL10 applications – ie
Re X process (though this will be revised
shortly)
• for the Court to decide
– whether to authorise the deprivation
– whether to add P to the proceedings /
make a family member a rule 3A rep, or
stay proceedings
• NB trigger is being “at risk of being
DoL…”

32. @BJhealthlaw
• DoL in ICU – Ferreira case is going to the
Court of Appeal (?February 2017)
• Law Commission on DoL – watch this
space…

33. @BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
ben.troke@brownejacobson.com| 0115 976 6263