A delicate balance

When is it in the best interests of an adult without capacity to be separated from her mother and covertly administered medication? A recent decision at the Court of Protection provides some guidance, writes Sarah Hutchinson.

A is a 25-year-old woman with mild learning difficulties, Asperger’s syndrome/autism spectrum disorder, and epilepsy. She has been under Court of Protection proceedings for five years, and is currently residing in a care home. Her mother, B, seeks a declaration that it is in A’s best interests to return home to her care, which is opposed by the Local Authority, the NHS Trust responsible for A’s care, and the Official Solicitor acting for A.

It had previously been determined that A lacks capacity to conduct litigation and make decisions about residence, care, contact with others and medical treatment and this was not in dispute.

The background to this case was lengthy but can be summarised as follows. In April 2019, HHJ Moir determined that relocating A from her mother’s home to a specialist care facility was in her best interests. Subsequently, in June 2020, HHJ Moir ruled to suspend all contact between A and her mother, B. Then, in September 2020, HHJ Moir decided that covert hormone treatment was necessary for A’s well-being, a decision made in closed proceedings unbeknownst to B and her representatives.

Two years later, in September 2022, Poole J ordered that B be informed of the covert medication and the closed proceedings, advocating for the reintroduction of contact between A and B. Throughout this period, contact between A and B progressed from telephone to video to face-to-face interactions. With the consent of all parties, including B, covert medication has continued, and A remains at her current placement, receiving specialist medical care, including covertly administered hormone replacement treatment (HRT).

Despite attempts to educate A about the benefits of hormone treatment, she refuses to cooperate. B, now collaborating with the covert medication, seeks A’s return home, believing she could persuade A to accept treatment. However, the Local Authority opposes this, suggesting supported independent living as an alternative. They also argue that the re-introduction of contact between A and B has negatively affected A’s behaviour and mood.

The court faced the challenge of determining the best course of action for A’s residence and medical treatment, considering the complex interplay of A’s condition, familial influence, and her best interests. At the heart of this decision lay the question of whether it was still in A’s best interests to persist in residing in the care placement where she receives covert medication, and remain separated from her mother, B. Alternatively, the decision also considered the option of returning A to her mother’s care, bearing in mind the ramifications this would have for her ongoing medical treatment.

The Law

The Mental Capacity Act 2005 (MCA 2005) outlines key principles regarding decision-making for individuals lacking capacity. Section 1(5) and (6) emphasize that actions taken on behalf of such individuals must be in their best interests and should be the least restrictive option. Section 4 of the MCA 2005 further elaborates on determining best interests, highlighting the importance of considering the individual’s past and present wishes, beliefs, and values, as well as involving relevant parties in the decision-making process.

Baroness Hale’s observations in Aintree University Hospitals NHS Trust v James [2014] AC 591 underscore the broad scope of assessing best interests, extending beyond medical concerns to encompass social and psychological well-being. This perspective necessitates understanding P’s viewpoint and consulting with those involved in their care.

The Court of Protection’s approach to best interests decisions, as outlined in N v ACCG [2017] UKSC 22, emphasizes the importance of considering the individual’s wishes and feelings from their perspective. In cases like ITW v Z [2009] EWCOP 2525 and Wye Valley NHS Trust v B [2015] EWCOP 60, the courts have stressed the significance of the individual’s wishes and feelings, beliefs, and values, while weighing them against other relevant factors in determining best interests.

The assessment of best interests involves considering various factors, including medical considerations, human rights, autonomy, and relationships. However, simply tallying advantages and disadvantages may oversimplify the decision-making process, as highlighted by McFarlane LJ in In the Matter of Re F (A Child) [2015] EWCA Civ 882.

Covert medication, a serious interference with an individual’s rights, requires careful consideration within the framework of the MCA 2005 and relevant case law. Cases such as A Local Authority v P [2018] EWCOP 10 and An NHS Trust v XB [2020] EWCOP 71 underscore the need for thorough assessment, documentation, and, in many cases, judicial oversight when considering covert medication in best interests decisions.

The judgment

In Re: A (Covert Medication: Residence) (https://caselaw.nationalarchives.gov.uk/ewcop/2024/19) The court considered firstly that continuing covert medication in A’s current placement or in supported living is a possibility, but carries the risk of A discovering the covert administration, which could damage her trust in caregivers and lead to adverse consequences for her health. Additionally, there are doubts about the sustainability of covert medication in the long term.

The court considered that returning home also poses challenges, as B’s ability to persuade A to voluntarily take HRT is questioned, and monitoring compliance with medication would be difficult. Moreover, A’s relationship with B may expose her to harm due to their historically enmeshed dynamic.

Several factors were considered in the judgment:

• A’s enmeshed relationship with her mother has previously been harmful to her well-being.
• While separation from her mother and regulated contact has provided some protection, it also causes stress to A.
• A’s strong wish is to return home, which must be taken into account despite her lack of capacity to make decisions about residence and care.
• Returning home would restore family life and give A more freedom, but it also poses risks, including the cessation of covert medication, which has brought health benefits.
• Mitigating measures to protect A from harm in her relationship with her mother have been largely unsuccessful.

The court ultimately decided that it was in A’s best interests to cease covert medication, be informed about her medication history, and to return to B’s care, subject to detailed planning and supervision to mitigate potential risks and further detriment. The court acknowledged the possible detrimental health impacts of ceasing HRT and the influence of A’s mother, however the judgment highlighted the statutory imperative of respecting A’s autonomy and family life, believing the potential risks of continued covert medication and deprivation of liberty to be greater than those posed by A’s return home.

Sarah Hutchinson will be a September 2024 pupil at Spire Barristers.