PH v Betsi Cadwaladr University Health Board [2022] EWCOP16

This was a judgment from the Vice President (following an ex tempore judgment in October 2021) concerning the treatment of PH, who had been subject to physical restraint in order to take blood samples from him at a time when there were no reasons to believe that he lacked capacity to consent to medical treatment.

Mr Justice Hayden states:

“No application had been made to the Court as to whether this was in PH’s best interests. I described what had happened as corrosive of PH’s dignity. It transpired that those actions were contrary to the advice of the Health Board’s own highly experienced legal team. What was also deeply troubling was that at the time that this occurred, PH was represented by the Official Solicitor in proceedings before the Court of Protection. A report addressing issues of capacity, commissioned at the request of the Official Solicitor, appeared to have been entirely ignored by the then treating clinicians.”

PH is 41 years old and has a complex and challenging medical history. In 2016 he drank corrosive hydrogen peroxide which resulted in the removal of his oesophagus and spleen. He has a tracheostomy and requires percutaneous endoscopic gastrostomy (PEG) feeding into his stomach. In 2019, he suffered from a hypoxic brain injury following a fit. PH is unable to eat and drink and has challenges communicating verbally. But, for those who know him and understand something of his nature and personality, PH communicates clearly and unambiguously.

In February 2022, Mr Justice Hayden was asked to resolve a dispute concerning PH’s transfer from a general surgical ward to a mental health rehabilitation placement. PH was unsettled by the prospect of change and wanted a life that was as ‘normal’ as possible. He wished for space and privacy and the proposed rehabilitation unit was not attractive to him. A private residential property near Bangor was identified and, on 7 February 2022, Mr Justice Hayden approved an agreed order.

Sadly, in the weeks that followed, events took a different turn when PH refused to take nutrition. All of the evidence gathered satisfied Mr Justice Hayden that PH had capacity to make decisions about his medical treatment. He concluded :

“His decision to refuse feeding is distressing to all who have got to know him, in whose ranks, I include myself. But it is his decision. In whatever time may be left for him, he and the medical team will have to work together. It is clear that the relationship, notwithstanding the history of this case, is now not merely a functional one, but a mutually respectful one. There is no further role for the court.”

The full judgement can be read here

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