Reading cases whilst at the hairdressers recently (they beat the magazines on offer – give it a try), I was particularly struck by two judgments handed down by the honourable Mr Justice Hayden. The facts of each case are of course very different, but each shone with compassion.
The Court of Protection makes decisions relating to health, welfare and financial matters for those who lack mental capacity to make a particular decision at a particular time, for themselves. The Mental Capacity Act 2005 therefore is integral to every aspect of this court and Mr Justice Hayden’s judgments offer a masterclass in how to ensure the individual stays front and centre of the decision-making process. Those of us who work with incapacitated individuals and their families, and who apply the Mental Capacity Act 2005 every day, can learn so much from the considered approached exemplified in these judgments.
All too often, clients who instruct us are embroiled in similarly distressing circumstances, but in their disputes with local authorities and health bodies, it can be rare to find these matters handled with such consideration. Correspondence that our clients have received from health and social care organisations, which incidentally often leads them to instructing us, often seeks to blame them, puts obstacles in the way of shared decision making, or glosses over the real issues in favour of a speedy hospital discharge or a ‘bog standard’ package of care.
By the time a case reaches the Court of Protection, the individual at the centre of the disagreement may have lost the ability to express their wishes and feelings. These judgments demonstrate how taking time to learn about someone’s past, their values and beliefs and the relationships that mattered to them can be instrumental in how a best interest decision is reached. Stories of an individual’s stubbornness and risk taking (as in Hounslow CCG and RW [2019]) or their preparedness and attention to detail (as in NHS Cumbria CCG and Mrs Jillian Rushton [2018]) can illustrate the path that person would have taken themselves. This does not mean that the decision should be exclusively based on what we think that person would have wanted (or done for themselves) “any more than those [views] of a fully capable patient must prevail” (Baroness Hale in Aintree v James [2014]). We can’t always get what we want, but professionals can and should ensure that best interest decisions are shaped by an understanding of the person.
Family members are vitally important in sharing this information and they can, to paraphrase Mr Justice Hayden bring the person concerned into the room. When disputes about a persons’ care or treatment becomes contentious, sensitivity towards the individual and their family can disappear. As these judgments show, families and professionals step away from each other, often to seek to gain control of the situation or to avoid conflict. Communication breaks down, matters reach crisis point and are then referred to the Court of Protection which must find the way forward that is in the individual’s best interests. What is, I think, most touching in these judgments is how obvious disagreements are managed in a way that affords respect to the individual and the family. This includes recognising the life changing impact of being a carer and the pressures this can bring to the whole family.
What will stay with me most, when I am next told by a professional that my client is ‘difficult’ or ‘uncooperative’ is Mr Justice Hayden’s closing comments in the Hounslow CCG case:
“I hope that a note of this judgment can be provided quickly and that those involved in RW’s care are given an opportunity to read it in order to enable them to understand there is much more to PT [RW’s son and carer] than the rather agitated and angry man they see. ([2019], paragraph 28)