Costs in treatment cases in the Court of Protection

Costs in treatment cases in the Court of Protection – Sandwell West Birmingham Hospitals NHS Trust v GH [2023] EWCOP 50

Introduction

An acute trust was ordered to pay 80% of the Official Solicitor’s (OS) costs due to delays in making an application for urgent treatment by the Court of Protection. This acts as a reminder that applications should be escalated and made as soon as reasonably possible.

Key points:

• a number of seemingly reasonable, small delays do not justify a late application
• due to the delay issuing, the in-house Head of Legal Services is named four times in the judgment!
• the various steps required before an application can be made had not been adequately completed including discussion with the family or a best interests meeting
• delays particularly bad when they impact the patient’s health or treatment options but similarly if it prevents their voice or representative (OS) being suitably involved
• if there are reasons to delay a decision, eg for improvement in mental state or involve family – then consider whether it is in the best interests of the patient to delay the decision
• guidance in the annex of FG and necessity to avoid making an application urgent due to delays restated
• the necessary agreement at the outset to pay 50% of the OS costs is effectively a minimum
• in-house legal teams may lack the experience and resource to prioritise cases sufficiently so external legal help is important to protect staff and organisation

Summary of Case

The case concerns GH, a 52-year-old woman with schizoaffective disorder, who was diagnosed with breast cancer requiring a mastectomy. GH was diagnosed with breast cancer on 2 March 2023 and declined treatment. On 5 May 2023 the psychiatric team decided that a formal capacity assessment should be undertaken by GH’s GP. An assessment was carried out on 30 June 2023, when she was assessed as lacking capacity to make decisions about her treatment and she was recalled to hospital to be offered antipsychotic treatment. On 6 September 2023, GH was again assessed as lacking capacity to make decisions about her breast cancer treatment and that she was unlikely to regain capacity in the foreseeable future.

The acute trust filed an urgent application at the Court of Protection on 21 September 2023 and the matter was initially heard in the urgent list on 26 September, as the surgery was proposed for 27 September 2023. They applied for declarations and orders that GH lacked capacity to conduct the proceedings and make decisions about breast cancer surgery, and that it was in her best interests to undergo the treatment. The court did not have sufficient time to hear the case on 26 September and it became apparent the family did not understand the proposed care, so the hearing and surgery were relisted for the following days.

As the evidence before the Court of Protection showed that consideration of an application to the court had begun in May 2023, the OS applied for a costs order against the trust due to the delay in making the application.

The trust provided a witness statement providing the reasons for the delay including difficulties obtaining evidence from busy consultants (due to summer vacation periods, long-term sick leave, and industrial action) and initial uncertainty around GH’s capacity.

Outcome

The Court of Protection found that GH lacked capacity to conduct the proceeds and to make decisions about her treatment and concluded that it was in her best interests to undergo the proposed surgery.

In regard to the application of costs by the OS, the court determined that the lateness of the Trust’s application:

• undermined the OS’s role to represent the interests of GH
• placed the court under considerable pressure to find time on a very urgent basis to hear the application
• risked undermining open justice by hindering an observer’s prospect of attendance
• caused disruption to the surgeons, clinicians and staff at the Trust because the surgery had to be postponed from 27 September and hastily re-arranged as the court could not hear the case until 28 September
• contributed to a delay in treating GH, as the need for surgery was known at diagnosis of GH’s cancer in on 2 March 2023, and the delay exposed GH to a risk of harm

The court was of the opinion that the reasons given by the trust were not a reasonable excuse for the delay in making the application to the court. Taking into consideration the degree of unreasonableness and extent of the delay, and the impact of the delay on GH and the OS, the court ordered the trust to pay 80% of the OS’s costs for the application. The court confirmed that an order for 100% of costs may have been made if the trust’s failings had been egregious and the consequences (including the financial consequences for the OS) had been more serious.

The court reiterated, as they often do, the importance of following the guidance in the FG case and the need to avoid urgent applications when a need for treatment is known in advance of the situation becoming urgent.

Take away point

The take away for trusts from this case is that applications should be made in good time wherever possible, in order for both the OS and the court to feel that they have sufficient time to explore capacity and best interests as appropriate. Therefore, it is important to ensure that clinicians know when and how to escalate potential issues of capacity and best interests promptly and seek early legal advice, in order to mitigate delays wherever possible. Trust legal teams should similarly consider when to obtain specialist legal advice to support clinicians dealing with these complex cases.

If you have any questions regarding this case or any other Court of Protection matter then please do get in touch.