![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales Court of Protection Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Cwm Taf Morgannwg Health Board v AB & Anor [2025] EWCOP 24 (T3) (10 July 2025) URL: https://www.bailii.org/ew/cases/EWCOP/2025/24.html Cite as: [2025] EWCOP 24 (T3) |
||
[New search]
[Context
]
[View without highlighting]
[Printable PDF version]
[Help]
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| CWM TAF MORGANNWG HEALTH BOARD |
Applicant |
|
| - and - |
||
| (1) AB (by her litigation friend the Official Solicitor) (2) Mrs CD |
Respondent |
____________________
Andrew
Bagchi
KC (instructed by Health Board Solicitor) for the Applicant
Ms Sian Davis (instructed by the Official Solicitor) for the First Respondent
The Second Respondent appeared in person
Mr Oliver Lewis for Wye Valley NHS Trust (the former applicant)
Ms Ariana Kelly for Powys Health Board
Ms Tutku Bektas for Powys County Council
Hearing dates: 30 June, 9 July 2025
____________________
Crown Copyright ©
McKendrick J:
She is beautiful (inside and out), she is highly intelligent and extremely articulate, with her whole future ahead of her. She is brilliant at art, studies hard at school, and dreams of one day being a paediatric nurse. She is a 17 year old CHILD currently fighting the most horrendous battle of her life that no child should have to face.
"[A Doctor]'s opinion is stated to be that [AB] is not able to use or weigh the information relevant to those decisions. The COP3 is sparse on reasoning for that view. It does not identify the mental impairment that is relied upon (notably, no cognitive impairment is noted). Section 6.4 amounts to little more than a statement of [AB]'s position, rather than containing analysis of her ability to use and weigh, and does not identify a causative link between any impairment and functional inability to make the decisions at issue."
There is reason to believe AB lacks capacity to consent to medical treatment by way of artificial hydration and nutrition and the use of force or restraint to deliver that.
By consent, Herefordshire and Worcestershire Health and Care NHS Trust shall by 10am on 2 July 2025 send to the applicant's solicitor a short report limited to three pages of A4 setting out an assessment of AB's capacity to consent to medical treatment by way of artificial hydration and nutrition and the use of force or restraint to deliver that. The assessment shall be carried out by consultant psychiatrist. [ ].
AND UPON the court being informed that at 10am on 1 July 2025, a Mental Health Act 1983 assessment shall take place, the outcome of which is likely to be relevant to future steps in these proceedings
In the event that AB is detained under the Mental Health Act 1983 and no relief is required from the Court of Protection, the applicant Trust has permission to withdraw the application upon two days' notice to the parties and with the parties' agreement that these proceedings should conclude.
By 4pm on 2 July 2025, the applicant Trust shall file and serve witness evidence:
a. setting out an update on AB's clinical presentation (including calorie intake, BMI, whether she is taking any food or fluids orally, whether she is complying with the NG refeeding plan, and blood results),
b. exhibiting the treatment plan which the court will be asked to authorise if AB is not detainable under the Mental Health Act 1983; and
c. exhibiting the Mental Health Act assessment documents.
As discussed by Herefordshire and Worcestershire Health and Care NHS Trust below, AB has now been detained under the MHA and discharged from the applicant Trust to a [unit] which falls under Cwm Taf Morgannwg University Health Board.
While the applicant Trust's involvement has now come to an end, the OS and CD consider that the Court of Protection should determine AB's capacity to consent to medical treatment by way of artificial hydration and nutrition and make best interests decisions about her ongoing residence, care and treatment, and would like the proceedings to continue, albeit with substation of a different Trust (Powys) as the applicant. (sic)
The parties are currently exploring the appropriate order to be filed with the court prior to the hearing next week and a proposed order will be filed by the applicant tomorrow, along with indications are to whether it is agreed and by whom.
I am instructed by Powys Teaching Health Board (PTHB) and have received a handful of emails from Weightmans in relation to this matter in the last few days, but have not had sight of any correspondence with the court and am not aware of the Official Solicitor's position.
The only order I have received is attached. If a further version has been circulated which involves PTHB, I ask for this to be shared with me. PTHB's response to the attached draft order was sent yesterday to K[ ] and S[ ] .. and said:
My client team's instructions are that as [AB] is currently under the MHA and is detained by Cwm Taf Morgannwg University Health Board (CTM UHB), if proceedings are to remain live, CTM UHB will be in a better position to update the court. It will also be for CTM UHB to make an application, should they require it, for any treatment/restrictions that fall outside of the MHA, or if the section is to be lifted and a legal framework is required for on-going treatment/restrictions. Our understanding is that the current s.2 MHA can run to the 29th July 2025. Whilst [AB] is known to Powys Teaching Health Board, it is CTM UHB who is currently the clinical decision maker for her, as such the proposed draft order is not agreed as it doesn't reflect the position as it stands.
CTM UHB's response has now been received and is understood.
PTHB will seek regular updates from CTM UHB and will attend any meetings that it needs to, in particular when the section being lifted is in discussion and for future care planning. My client team would echo CTM UHB's position in relation to the court's jurisdiction and that the current proceedings should be stayed or concluded. For the reasons given above it is not accepted that PTHB should become the applicant in the current proceedings.
No application or request has been received for PTHB to attend tomorrow's hearing.
With regards to the unsealed s.49 MCA order PTHB received and was directed to file a report on capacity by today, this has not been possible due to the situation on the ground changing and [AB] being detained under the Mental Health Act.
"At this stage I do not think Cwm Taf Morgannwg Health Board are a party and it has not been served or formally notified of any application including any application to join it as a party. [AB] is currently detained under the Mental Health Act so Cwm Taf Morgannwg Health Board does not currently seek any orders from the Court of Protection. The clinical team at [the Unit] will be liaising with [AB]'s parents and the Community Team from Powys to develop an appropriate plan at the point of discharge from [the Unit].
If at any stage court orders are required then the nature and jurisdiction for those orders will depend on a number of factors including the care plan and [AB]'s capacity to consent/refuse treatment. My suggestion is that the current Court of Protection proceedings are either stayed or concluded. At present I have no authority from Cwm Taf Morgannwg Health Board to agree to it being substituted as the Applicant or to pay half the costs of the Official Solicitor. I have no objection to this email being forwarded to the court".
It appears from reading that [AB] herself is seeking to remain in hospital and could be a voluntary arrangement. It is not clear what is being said about [AB]'s capacity and upon what decision. As set out by [the solicitor for Cwn Taf] PCC would expect to be involved in discharge planning when [AB] has been assessed and a treatment plan in place and as we would in any other matter, once [AB] has been determined fit for discharge".
I apologise for the delay in responding to the numerous different email chains I have received today. I left the house at 8am to visit my daughter in South Wales and have not long got home and seen the large volume of communication.
……
I have been cc'd in on multiple email chains today setting out numerous responses from the separate health boards legal teams with very little time this evening to read and understand them fully. I am deeply concerned at the lack of productive dialogue between the trusts on the most suitable way forward. In all these emails I feel that the most important issue has been forgotten and would seek to highlight it in this communication.
I read a lot about [AB] this and [AB] that in the communication from the legal teams but my daughter is more than just her initials on legal paperwork. She is beautiful (inside and out), she is highly intelligent and extremely articulate, with her whole future ahead of her. She is brilliant at art, studies hard at school, and dreams of one day being a paediatric nurse. She is a 17 year old CHILD currently fighting the most horrendous battle of her life that no child should have to face.
My daughter is more than an NHS number, a council statistic or a balance figure on a budget spreadsheet. She is my child and I will fight with everything I have in me to keep her alive.
I am not oblivious to the fact that budgets are tight and there is not an endless pot of money however I need my child's best interests to be at the forefront of the decisions made about her care. I am a mother of 6 children with no legal or medical background, trying to spend as much time as possible supporting my very sick child whilst also holding a family of 8 together. Yet every day I am forced to spend hours on the phone or replying to emails because the trusts can't seem to work together to put my child's best interest first. I have waited days for paperwork that I am entitled to receive and have repeatedly had to chase solicitors for court orders and documentation.
My daughter has not taken on board any nutrition since leaving Hereford hospital and has not had any hydration since Saturday 5th July. She has lost 2.1kg in the last 4 days and all her vitals are deteriorating. This is terrifying as a mother to witness and be powerless to change. My main focus right now should be her fragile health yet I am left to try and deal with trusts who can't work together to come to a resolution. The last 2 weeks have been some of the most stressful weeks of my life.
My daughter may be in [the Unit] at the moment but at some point she will be back in Powys and will more than likely have to be treated again at Hereford County Hospital. With 4 counties involved in her care I fail to see how we can progress effectively without the assistance of the Court of Protection as none of the health boards involved seem to be able to agree on how to ensure my daughter best interests are protected.
I am extremely grateful to [the Unit] and the office of the official solicitor who are trying their hardest to help my daughter at the moment but this is not something they can manage alone. They need the health boards to come to an agreement which ensures my daughter does not suffer due to geographical boundaries and council budgets.
a. I discharged Wye Valley as a party;
b. I added Cwm Taf as a party and directed they become the applicant. I gave them permission to apply to vary or discharge this order;
c. I listed Powys' informal COP 9 application to considered at a hearing at 15.30 on the same day;
d. I adjourned the hearing until 15.30 and required attendance from Cwn Taf and Powys.
e. I invited Powys County Council to attend.
a. A failure to appreciate these proceedings began as an urgent out of hours application and the hearings and orders made without hearings have all had to be fitted into already very busy court lists. It is especially disappointing to note that orders made have been routinely ignored. Nor have the Court of Protection rules been followed.
b. Whilst AB is currently detained under section 2 of the1983 Act, she requires an urgent capacity assessment. The chronology seems clear: her capacity appears to have fluctuated and there have been questions over capacity and liability to be detained. There is repeated reference to voluntary admission. She has a complex presentation. Thought needs to be given now, as to whether she lacks capacity in circumstances where her section 2 1983 Act liability to be detained and treated is discharged. Will there be the framework to keep her safe or will there be a further urgent out of hours application?
c. It is surprising that two orders from this court to two different public bodies which were made to ascertain this court's jurisdiction, have not been followed. It is concerning that Powys felt the appropriate response was to email the parties letting them know the order would not be complied with, without considering a formal COP 9 to vary the order, as the original section 49 order provided for.
d. It is a matter of concern that Cwm Taf are detaining and treating AB and knew of this hearing and had sufficient understanding of the issues involved, yet they did not write to the court to update it or instruct representatives to attend. Nor does it appear to me they adopted a constructive approach to Wye Valley's legitimate attempt to be discharged as applicant and replaced by another public body.
e. All in all, the failure of these public bodies to work together is perplexing. They each appear to operate in silos having only regard to their own duties, without any common sense approach to the life of a child, who requires them to work together to protect her.
f. Overall, the approach taken by the public bodies has failed to properly respect Mrs CD and AB herself. The lack of common sense thinking appears to have permitted a disregard for the humanity of those involved. Mrs CD's powerful, maternal plea (above) should be re-read by those treating AB and those advising and representing the public bodies.
Note 1 The application was issued within the Court of Protection’s jurisdiction. Given AB is a child, I have been alive to the possibility of providing clinicians with consent to treat under the High Court’s Inherent Jurisdiction in the absence of consent from AB herself. See the succinct expression of the court’s protective power at paragraph 2 of Sir James Munby’s magisterial judgment in A NHS Trust v X [2021] EWHC 65 (Fam); [2021] WLR 4 WLR 11: “It is conventional wisdom that no child (that is, someone who has not reached the age of 18) has such an absolute right, and that even if the child is Gillick competent (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112) or, having reached the age of 16, comes within the ambit of section 8 of the Family Law Reform Act 1969, the court, in the exercise of its inherent parens patriae or wardship jurisdiction, can in an appropriate case – typically thought of as being a case where the consequence of the child's decision is likely to be serious risk to health or death – overrule the child's decision, either, as the case may be, vetoing some procedure to which the child has consented or directing that the child should undergo some procedure to which the child is objecting.” The fact that this powerful, residual, protective power is available to me, has added to the anxiety that has clouded these proceedings. [Back] Note 2 I am grateful to Weightmans for producing a bundle for the 15.30 hearing after they were discharged as applicant at the 10 am hearing. [Back]