A Local Authority v A, B and the Hospital Trust
Summary
This 5-year long case concerned a 25-year-old woman (‘A’) who was being covertly medicated in a care home whose mother sought her return to which all other parties were opposed. The previous judgments were reported at [2019] EWCOP 68; [2020] EWCOP 76; [2022] EWCOP 44. By way of reminder, in a previous closed hearing, it was decided to be in her best interests to be administered hormone replacement treatment (‘HRT’) covertly. Two years later Poole J decided her mother should be informed and for contact between them to be reintroduced. In September 2022 it was decided that a plan should be prepared to transition to open medication.
A was told that she has gone through puberty and she steadfastly refused to take the medication voluntarily. The issues at this hearing were whether it was in her best interests to return to her mother’s, in respect of which the issue of covert medication was inextricably linked. Poole J noted that:
24. … the assessment of best interest involves consideration of very different concepts such as medical risks and benefits, human rights, wishes and feelings, autonomy, and relationships. Those disparate matters have to be taken into account but a balance sheet exercise may not be particularly helpful.
Covert HRT had produced a significant medical benefit for A by ensuring she went through puberty, protected her against the loss of bone density and the very significantly increased risk of cardi-vascular disease. However, Poole J was troubled by the fact that the plan for covert medication had no end date in sight; she was not severely cognitively impaired; its purpose – to induce puberty – had happened; and if HRT ceased, she would likely experience menopausal symptoms.
Poole J was concerned about the impact on A’s health and welfare if she made the discovery and that, if her mother lost hope of her return home, she may tell her. Poole J doubted it was sustainable for years ahead. The mother’s proposal to covertly medicate her at home until she persuaded her daughter to take HRT voluntarily was unrealistic as her actions did not match her words. There was a high risk she would find out if she moved to her mother’s. However, the provision of covert medication required her to be deprived of her liberty, to live away from home, and for her contact with her mother to be regulated.
Dr X, who acted both as A’s treating clinician and as the expert reporting to the court, gave evidence to the effect that A should be covertly medicated for the rest of her life and it was unlikely she would do so voluntarily. Nothing attempted so far to move to open medication had been successful and no transition plan had been prepared. To do so would require (a) honesty about her having been covertly medicated and (b) the input of her mother to whom she was more likely to listen.
Poole J carefully analysed the benefits and burdens of returning to her mother’s against her continued stay. On balance, and contrary to the position advanced by the local authority, the Trust and the Official Solicitor, his Lordship decided it was in her best interests (i) to return home to her mother’s care; (ii) for covert medication to cease; (iii) for her to be informed that she has been covertly administered HRT and that it has been of benefit to her health and stopping it would be harmful to her health; (iv) to allow her mother to try to persuade her to take HRT voluntarily; and (v) for support to be provided to her in the community whilst she is living at home. Poole J held:
84. The assessment of best interests in this case is complex. Whatever decision is made, or if no decision is made, there will be both positive and negative consequences for A. I acknowledge the risk that my determination of A's best interests will result in her returning home to an unhealthy relationship and will expose her to the harmful consequences of ceasing HRT. However, those risks are outweighed by the benefits of ending the deprivation of A's liberty and the serious interference with her Art 8 rights, and of avoiding the risk of an unmanaged disclosure to her of the covert administration of HRT. The Court is enjoined to seek to achieve purposes "in a way that is less restrictive of the person's rights and freedom of action" (MCA 2005 s1(6)). Here, severe restrictions have been imposed in order to achieve the benefit of medical treatment. Now, the continuing and remaining benefits of treatment are not sufficient to justify the continued restrictions.
Accordingly, he directed, a plan should be prepared for her return home and for the release of information to be carried out in stages (paragraph 85).
Comment
The covert medication stakes were particularly high in this case and could not be siloed from residence. Rather than adopting a balance sheet exercise, the court’s analysis very much focused on the issues of necessity and proportionality. Given the risks and benefits of the two options, was her continued detention and separation from her mother’s care still necessary and proportionate to the health benefits of HRT? With the primary goal of the treatment having been realised - with A having gone through puberty - the balance had shifted and honesty was now the best policy.
Poole J’s observations about the dual role of Dr X are also of note. Dr X himself had said in evidence before Poole J that this was not a satisfactory combination of roles, and Poole J agreed that this should be avoided (paragraph 7). That is not the same as saying that clinicians cannot give evidence based upon their expertise. As Hayden J noted in London Borough of Southwark v NP & Ors [2019] EWCOP 48
vi. In Court of Protection proceedings, the Court will frequently be asked to take evidence from treating clinicians. Invariably, (again especially at Tier 3) these will be individuals of experience and expertise who in other cases might easily find themselves instructed independently as experts. Treating clinicians have precisely the same obligations and duties upon them, when preparing reports and giving evidence as those independently instructed. Further, it is the obligation of the lawyers to ensure that these witnesses are furnished with all relevant material which is likely to have an impact on their views, conclusions and recommendations. (see: Re C Interim Judgment: Expert Evidence) [2018] EWFC B9 ). This should not merely be regarded as good litigation practice but as indivisible from the effective protection of P's welfare and autonomy.
