Thread by @KitzingerCelia

This afternoon I attended an "urgent" Court of Protection hearing via video-link.

Another amputation case.

A 43 year old man, FA, gangrene in both feet, at risk of fatal septicaemia.

He's consistently stated he doesn't want double amputation, as surgically recommended.

This is so similar to another case (ZA) I blogged about today

Both have paranoid schizophrenia, diabetes + severe infections

Both are refusing amputation.

ZA was heard by Cohen J (judgment tomorrow)

FA was heard by Hayden J + he gave oral judgment

openjusticecourtofprotection.org/2021/04/29/cou…

FA was in court throughout the hearing, propped up on pillows in bed on a hospital ward, with his solicitor by his side.

He was represented in court by Katie Gollop (via the Official Solicitor). @katiegollop

The Trust was represented by Rhys Hadden.

FA's solicitor had spoken with him for 1.5 hours and reported his views.

He would find amputation "devastating" and "totally disfiguring". He would feel "very bad" and said he'd "never get used to it".

She'd explained he would have rehab, support + counselling.

"These people will come and go and at the end of the day I am the person who will bear the brunt of it. I don't want to be in such a situation"

What if he knew for sure he would definitely die if he didn't accept the amputation?

"So be it. I am being treated as if I have no understanding. I have a very rational understanding. I do not want the amputation because the limiting effects will be too profound"

He would like to explore other treatment options + believes (falsely, say doctors) that there's a high chance of the antibiotics working.

Mr Justice Hayden met privately with FA in lunch break and found him "alert, articulate, engaged and even humorous"

But Hayden J found that FA "was unable to accept the reality and + extent of this severe, dangerous + life-threatening infection or properly to evaluate the appropriate treatment", so lacks the capacity to make his own decision.

As with ZA then, it's a best interests question.

Hayden said, "We know more about FA now at 3pm than we did at 11.30 this morning when we started the hearing. We know something of the code by which he lives his life."

Trust now took position that amputation was NOT in FA's best interests in the light of evidence of his views.

"Many individuals given this awful choice would go down the route of a double amputation and find a quality of life in it," said Trust. "He's not that person"

OS said FA was clear about his choice to IMCA + solicitor.

He's asked about appeal if judge makes wrong decision.

OS "does not wish to dissuade [judge] from a finding that FA lacks capacity".

Takes position that amputation is NOT in FA's best interests

With some trepidation, OS mentions Article 3 Human Rights Act - "inhuman or degrading treatment" (because of how FA feels about amputation)

Hayden J: To impose an amputation, doubly, on a man who doesn't want it is, I think, arguably, inhuman and degrading but that's not how FA talks about it. He says "destroy his life ambitions + goals" +"loss of opportunities". Some might use Art 3 language, but FA doesn't here.

After closing submissions FA addresses court

"Any decision to amputate my legs will have a devastating effect on my life.I do not lack capacity.I have considered everything that has been said. I've decided I do not want amputation. I would be grateful if you will abide with me."

In oral judgment Hayden gave great weight to FA's wishes "expressed unambiguously and consistently".

Quoted Baroness Hale in Aintree

supremecourt.uk/cases/uksc-201…

Hayden also read out para 10 from Lord Peter Jackson's decision in the Wye Valley NHS Trust v B case.

bailii.org/ew/cases/EWCOP…

Hayden said, "I respectfully agree with those observations [from Wye Valley judgment]. This is a fundamental issue of the rights of people with disabilities and a crucial facet of ensuring that their autonomy is protected"

FA's view "carry very significant weight indeed"

Hayden J: "There is always a strong presumption in favour of preserving life - but the determinative factor here is FA's resistance to that proposed course. .... I should be failing him if I failed to respect that."

Hayden J: "I am prepared to declare that it is not in FA's best interests to undergo amputation. At the end of the day that was the unanimous perspective of all the professionals".

Will similar weight be given to ZA's refusal of amputation?

Judgment
3pm Friday 30th April (via MS Teams)
Email: [e-mail]
Ask for access to COP 13718293Re: ZA before Cohen J

#NotSecretCourt

Background:
openjusticecourtofprotection.org/2021/04/29/cou…