Re GH (Mastectomy: Best Interests: Costs)

Summary

This matter related to GH, who was 52 and had a diagnosis of schizoaffective disorder. The substantive application sought orders that GH should undergo breast cancer surgery which were granted. However, the case is of greater interest for its findings on costs orders in serious medical treatment cases.  

GH was diagnosed with breast cancer in March 2023, shortly after being released from detention under the Mental Health Act 1983 on a Community Treatment Order. GH refused treatment for her condition. She was re-detained in May 2023 for about three weeks, at which time she felt that her cancer diagnosis was a ‘cover up’ to avoid her receiving compensation from the NHS. A capacity assessment was undertaken on 30 June 2023 by a psychiatrist, breast surgeon and breast nurse, who concluded that she lacked capacity (at the time, she was expressing her breast lump was due to ‘black magic’). She declined any care for her condition. A view was taken that an application ought to be made to the Court of Protection, and a decision was taken to recall GH to hospital for further treatment of her schizophrenia. She was re-admitted to hospital on 27 July 2023, and told that an application would be made to the Court of Protection in respect of her breast cancer treatment in early August. A re-assessment of her capacity was undertaken on 6 September 2023, reaching the same conclusion as the June assessment. 

The Court of Protection application was not made on 21 September 2023; the evidence before the court was that there was a risk that the carcinoma may have grown to such an extent that it may be inoperable. The Official Solicitor had been given notice of the proposed application towards the end of the previous week. It came before Poole J on the urgent applications list on 26 September, with the Trust seeking authorisation to carry out the proposed surgery on 27 September. The court did not conduct a full hearing on the 26th, and listed the matter for a half-day hearing on 28 September, at which time GH was found to lack capacity to make the relevant decisions and the treatment plan was found to be in her best interests. A post-script notes that the recommended surgical treatment was undertaken successfully, the carcinoma was operable and treatment was achieved without the use of restraint. 

Costs

The Official Solicitor made an application for a costs order for 100% of her on the grounds of excessive delay in issuing proceedings. The Trust opposed this order. It stated that the delay had been caused by a number of factors, including GH’s consultant going on long-term sick leave, its lack of control over the evidence of GH’s treating psychiatrist, uncertainty about GH’s capacity, and general stresses on the NHS, including industrial action. 

The Official Solicitor argued that “the delay by the Applicant Trust [was] ‘unacceptable’ and as having had a number of adverse consequences including that it undermined the role of the OS herself. As early as 5 May 2023 it was recorded that GH did not appear to have capacity to make decisions about her treatment….The OS is concerned that in too many cases of this kind (not necessarily involving this Applicant) Trusts make very late applications, thereby undermining her role” (paragraph 55). 

The Trust made two arguments in response: 

1. At the outset of the proceedings, the Trust had agreed, in the standard convention for Serious Medical Treatment applications, to fund 50% of the Official Solicitor’s costs. The Trust argued that the Official Solicitor now sought to withdraw from that agreement, and should not be permitted to do so.
2. In any event, there were no good reasons to depart from the general rule on costs in welfare applications, because: 

i) Satellite costs litigation should not be encouraged in this welfare jurisdiction.

ii) The bar should not be set too low for departing from the general rule. The pressures on NHS trusts and very busy clinicians are such that if there is a departure on the basis of delay in making applications in such cases, there will be many such applications and the conventional arrangement will be jeopardised.

iii) If there is a departure from the general rule due to conduct, then the conduct should not only be serious, but it should have very clear costs consequences. Here the OS did not incur additional costs because of the timing of the application (paragraph 58)

By way of framework on costs, Poole J set out s.55 MCA and COPR 19.3, 19.5, 19.6 (which incorporated by reference Parts 44, 46 and 47 CPR(with modifications as set out in the COPR)) and 19.9.

In relation to the first argument, Poole J found that the agreement of the Trust to pay 50% of the Official Solicitors costs ”‘is not a formal contract and, I find, it is implicit in the agreement that, depending on the circumstances as the OS later finds them to be or as they develop, the OS may in certain cases seek a costs order for more than 50%. […] the Trust did not rely to its detriment on the agreement and that the OS is not estopped or otherwise prevented from seeking a greater proportion or indeed the whole of her costs” (paragraph 57).  

Poole J noted the statements of Keehan J in An NHS Trust v FG [2014] EWCOP 30 as to the undesirable consequences of late applications. At paragraph 61, he set out how he considered that this this case, the lateness of the application had: 

i.    Undermined the role that the OS should play in the proceedings. The importance of this should not be overlooked. The OS represents the interests of GH. The OS needs time to consider the evidence, meet GH and ascertain her wishes and views, probe the evidence, ask questions, seek independent expert evidence if necessary, liaise with GH's family, and form a view of GH's capacity and best interests. The OS does not have unlimited resources and has responsibilities in many other cases.

ii.    Placed the court under considerable pressure to find precious time, on a very urgent basis, to hear the application. There was no opportunity to give directions in relation to evidence other than within a very short period from 26 to 28 September 2023. An application of this kind is very unlikely to be determined within an hour. The urgent applications list will often have six or more cases, sometimes several more, to be heard within the day. If an urgent application can be avoided it should be avoided. This application only became urgent because of the delay in making it.

iii.    Risked undermining open justice - this application did not appear on the list on September 2023 because of the lateness of the application. Hence, those who might have wished to observe this important application did not have advance notice of what might have been a substantive hearing on 26 September.

iv.    Caused disruption to the surgeons, clinicians, and staff at the Trust because the planned surgery on 27 September 2023 had to be postponed and hastily re-arranged.

v.    Contributed to a delay in treating GH. The need for surgery was known at diagnosis on 2 March 2023. The surgery took place nearly seven months later. A key performance standard for NHS England is for a 62 day period between referral and treatment for cancer (the target being for this standard to be met in 85% of cases). For a person with capacity who had refused adjuvant chemotherapy but consented to surgery (which is effectively the corresponding position for GH following my decisions above) the target date for surgery (the first line of treatment in those circumstances) would therefore have been in late April 2023, about five months before the application was made. The consequences of the delay in treatment are unknown (but see postscript below).

Poole J did not consider that there was any bad faith by the Trust, and accepted the difficulties which had been presented by the Trust on pressures on resources within the NHS. “However, it must have been clear, if not in early March certainly by early May, that a Court of Protection application may well be required and that, given the nature of GH's condition and the surgery required, the delays up to that point, and the pressing need for surgery to be performed sooner rather than later, expedition was required” (paragraph 63). The court did not accept that the reasons given by the Trust justified the delay. 

Poole J accepted that the Official Solicitor would have incurred costs in any event, and likely would have incurred more costs had the application been timely, as there would have been more opportunity to work on the matter. However, Poole J found that applying CPR 44.11 (via COPR 19.6), a costs order can be made that is not entirely compensatory, even if there is not misconduct. Poole J likened the conduct of the Trust to being “close to that of a party who has been successful in civil litigation but who had unreasonably refused to mediate,” (paragraph 66) which has been recognised by courts “as being conduct that justifies a departure from the usual order that costs follow the event […] Such costs orders will not require payment of costs over and above the costs actually incurred, but they are not purely compensatory because it cannot be known with certainty what costs would have been incurred had mediation taken place. […] The costs order is designed to encourage appropriate pre-issue conduct” (paragraph 66). 

Poole J found it was appropriate to deviate from the general rule on costs where the Trust’s “pre-issue conduct undermined the role of the OS and prevented pre-issue work which may or may not have helped to resolve some of the issues which the making of the application required the court to determine. Just as an unreasonable failure to mediate can justify a departure from an order that costs follow the event in civil proceedings, even if the costs incurred may have been incurred had mediation taken place, so, in my judgment, a failure to issue an application in the Court of Protection in relation to a question of serious medical treatment within a reasonable time, may justify a departure from the general rule as to costs even if another party's costs may not have been avoided had the application been brought timeously” (paragraph 67).  Poole J considered that the Trust’s conduct had also been unreasonable in “exposing GH, whose interests the OS represents, to a risk of harm” (paragraph 68).  

In determining what costs order should be made, Poole J accepted “that in exercising a discretion as to costs the court should consider what costs might have been incurred in any event but that is not an accounting exercise in a case such as this” (paragraph 69). The judgment set out that there had been an existing agreement for the Trust to pay 50% of the Official Solicitor’s costs in any event. Poole J considered that assessing costs as a ‘broad brush’ exercise, which took into account “all the circumstances which include the degree of unreasonableness and the extent of the delay, the impact of the delay on GH and the OS, the costs actually incurred by the OS and to what extent those costs have been incurred as a result of the paying party's default. Exercising my discretion I am sure that an issue based costs order would not be appropriate and I do not have adequate information on which to make an award for a fixed amount of costs. I take into account my power to order assessment of costs on the standard or indemnity basis. In my judgment an appropriate order is for the Applicant Trust to pay 80% of the OS's costs of and occasioned by the application to be assessed on the standard basis if not agreed. An order for 100% of costs might have been made if the Trust's failings had been egregious and/or the consequences, including the costs consequences, for the OS even more serious” (paragraph 70).  

Comment

The case is a rare example of an order for costs being made against a public body in welfare proceedings. We would note the differing approaches taken by Poole J here and DHCJ Vikram Sachdeva KC in West Hertfordshire Hospitals NHS Trust v AX (Rev 1) [2023] EWCOP 11, on what was essentially a very similar application by the Official Solicitor for costs in a case where there were significant delays and the case was brought on an urgent basis.  In the earlier case, DHCJ Sachdeva had emphasised previous case law cautioning against costs orders in welfare cases, and despite the Trust having failed to follow the guidance in FG, which had caused prejudice to P and impacted on the work of the Official Solicitor and court in scrutinising the application, the court found it would not have made a costs order. DHCJ Sachdeva considered that the test for departure from the general order on costs was relatively high (applying a standard in line with ‘significantly unreasonable’ conduct), and that the court could express disapproval of a party’s case in manners other than a costs order. In both cases, the courts acknowledged the fact-specific nature of costs applications and courts considering the complete circumstances of the case, and it may be that neither case would be particularly persuasive as authority in future applications for costs.