Judge: Hayden J
Citation:  EWCOP 8
Hayden J has had to grapple with a further case in which delay in bringing a case to court has had serious consequences for the person.
The case concerned a young man aged 17, with a longstanding disability and described as severely autistic. He was unable to communicate either verbally or, for the most part, in any consistently effective way at all. He lived with his parents but he received some respite care, particularly at the weekend, at a specialist establishment for people with learning difficulties. In January 2019, he was given a CT scan under general anaesthetic in order that his dental state could be properly assessed. A plan had been made for him to walk into the clinical area and, if necessary, for restraint to be used. He walked part of the way with his father, who was a mental health nurse, but then refused to go into the clinical room. The Trust’s Strategies and Intervention Team, which managed people facing similar challenges to him and who sometimes exhibit their distress in aggressive behaviour, briefly restrained him on a bed for approximately two minutes in order that venous access could be gained and anaesthetic agents safely administered. His father was able to calm the young man when he was restrained, and on waking he was relaxed and did not require any further restraint.
The examination that was undertaken revealed some tooth decay, but it also revealed that the young man had impacted wisdom teeth. The fact that they are impacted did not mean that they were necessarily painful. They may remain impacted for many years and cause no pain, but sometimes they do, and quite commonly this arises in late teens and early twenties.
However, from around October 2019, and with increasing frequency, the young man was observed by his parents violently to bang his head, sometimes banging his head against walls. As Hayden J observed “[t]he parents, of course, have the opportunity to see their son more than anybody else. Whilst he may not be able to communicate directly, by a whole raft of cues, many of which they will not be aware of, they have become intuitive to his needs. They believed that his behaviour was in response to dental pain.”
In November 2019, the young man was taken to the local A&E by his parents with an obvious bruise to his forehead. They believed that his behaviour was so markedly changed that they feared he had some sort of concussion and may have fractured his skull. As Hayden J observed “[i]t is, to my mind, self-evident that there was an urgent medical emergency that should have been investigated within hours or days, but in fact there has, as yet, been no CT scan at all.” Because there were potentially two pathologies to consider, a variety of disciplines became involved. In December, a multi-disciplinary meeting was convened. The parents were becoming increasingly concerned, however, and had the sense that they were not being listened to sufficiently.
It was clear on the evidence before the court that the young man lacked the capacity to consent to treatment or to understand the various issues involved.
In the circumstances, Hayden J observed that:
Hayden J first had sight of the case on 20 February 2020, and reconvened the next day:
For reasons that are not developed in the judgment, it appeared that it was not practically possible to ensure inspection/treatment before March 2020. Amongst the consequences of this, Hayden J was careful to observe was that, as his parents told him, the deterioration in his behaviour responding to his pain:
This is not the only case that Hayden J has had before him recently in which delay has caused adverse effects. We covered the Mrs H case last month, and its sequel  EWCOP 6) reveals that the position was, as he feared, namely that the failure to make the application in a timely fashion meant that Mrs H’s cancer was now inoperable.
In this case, and on the basis of paragraph 17 of Hayden J’s judgment, and the very deliberate use of the term ‘neglectful,’ it would appear – in due course – that a claim could be brought on behalf of P to reflect the harm caused to him by the consequences of the delay. Paragraph 13 of his judgment both crystallises the problem and reflects what comes close to judicial despair as to how to ensure that such situations are not repeated.
Amidst all of this, it may come as a minor point, but it is perhaps rather striking that it appears that a year previously it had been considered entirely possible by those responsible for P’s case to have carried out a CT scan under general anaethestic (in circumstances including restraint) without the need to go to court.