Royal Free NHS Foundation Trust v EF & Ors

Summary

In this case, McKendrick J granted an application by the applicant NHS Trust for EF to be removed from the lifelong care of his father, NN, and placed in a nearby supported living placement for the purposes of ensuring he received a sufficient level of dialysis and regular medication.

EF was a 44-year-old man with Down’s Syndrome. He had kidney failure and required thrice weekly dialysis and medication to manage his phosphate levels. He had missed many sessions and had not stayed for the full required time at many more sessions, with the result that his dialysis was chronically inadequate, putting him at risk of sudden death or other complications, including difficulty breathing, heart and peripheral vascular problems, acute confusion, damage to bones and blood vessels, and painful, and/or uncomfortable skin conditions.

The three represented parties (NHS Trust, EF by the Official Solicitor, and the local authority with safeguarding responsibilities), agreed that EF lacked capacity to make decisions about his medical treatment, his residence and care. They all agreed that it was in EF’s best interests to be conveyed to supported living for the purposes of receiving sufficient dialysis.

NN, EF’s father, was EF’s main carer and a litigant in person. He did not file a witness statement or attend the pre-trial review.  He attended the final hearing and requested an adjournment, which was opposed by the three represented parties, but a short adjournment to the afternoon and following day was granted.

The court heard evidence that NN remained preoccupied with his bankruptcy and the death of his wife, EF’s mother, and continued to believe that EF did not have any kidney damage and did not require dialysis. He had entrenched mistrust of professionals. He did not agree that EF had a kidney problem and insisted that he did not require dialysis. NN had considerable influence over EF’s views. It was unlikely that EF’s understanding of his condition and need for treatment would be successful whilst he continued to be subject to his father’s influence. EF did not want to undergo dialysis in hospital, or move or live away from his father. There would be risks to EF’s mental health if he were to be accommodated away from NN and have his contact with his father limited. NN opposed EF leaving his care or their home.

In weighing up EF’s best interests, McKendrick J pointed out that, absent the issue of dialysis and medication, the local authority with safeguarding responsibilities, would not have intervened to separate EF from his father. NN had provided his son with a home and a social life. Given EF’s strongly held wishes and feelings, it was unlikely that a court would have separated EF from NN if the issues of treatment for the failed kidneys had not arisen.

However, in the end, McKendrick J accepted that EF’s quality of life was seriously impaired because of the symptoms caused by insufficient and infrequent dialysis. He was also likely being negatively psychologically impacted by the ongoing conflict between professionals and his father, and these proceedings. Both the quality and length of EF’s life strongly weighed the best interests balance towards separation from his father to ensure he received regular and sufficient dialysis and medication to keep him as healthy as possible.

Comment

This case is a good example of the overlap between the various “domains” when it comes to best interests. The issue of EF’s care and residence, and contact with his father, clearly overlapped with the main issue to be determined, namely whether it was in EF’s best interests to receive medical treatment. Although the issues presented to court are typically considered under common headings such as care, residence, and medical treatment, it is important not to treat these issues in “silos”, and to have regard to the wider picture when considering P’s best interests, which will be highly fact sensitive.

We would also take this opportunity to draw attention to the pro bono scheme recently launched by Advocate in conjunction with the Court of Protection Bar Association to assist litigants in the Court of Protection (see further the Practice and Procedure section in this Report). It is not clear from the judgment whether NN sought legal advice or representation at any stage. However, McKendrick J “wondered whether he does have difficulties and whether he has capacity to conduct the litigation. I do not conclude he lacks litigation capacity but it is clear he is vulnerable and the presentation of his case was impaired by some strange perspectives.”