On the 29th December 2021, Jenny Kitzinger and Celia Kitzinger shared a challenging and troubling case on the website Open Justice Court of Protection. This case demonstrates the lack of knowledge and application of the Mental Capacity Act (2005) by London North West University Healthcare NHS Trust, who continue to be rated as ‘Requires Improvement’ by the Care Quality Commission.
In this case, the patient, Mrs W, had her nasogastric tube removed by medical staff on 10th November 2021. Mrs W had previously assigned the role of Lasting Power of Attorney (LPA) for Health and Welfare to her children. However, her children were not consulted in this process, and the clinicians declined to reinstate the feeding tube when challenged. The Trust then proceeded to withdraw hydration from Mrs W as well.
Acting in Best Interest
The Mental Capacity Act (2005) clearly directs that any non-emergency decision of treatment should be completed through a Best Interest meeting with appropriate consultation of all relevant parties. If there is any disagreement on what constitutes a patient’s Best Interest, then an application should be made to the Court of Protection. However, there was no evidence that any of these legal and good practice steps were adhered to. This led Mrs W’s son to obtain urgent legal aid.
The first hearing took place on the 8th December 2021. During the course of this hearing, the Trust is reported to have apologised and recognised two key errors within the escalating series of events. These were, namely that:
- [events] were not fully elicited prior to removal of the nasogastric tube
- an application to the Court of Protection was not made
At this point in the proceedings, it was agreed that no further treatment or basic needs should be withdrawn from Mrs W while the case was heard. However, at this point, Mrs W had received no nutrition at all for a period of 28 days.
The second hearing was held only four days later on the 13th December 2021. However, the Court was informed Mrs W had very sadly passed away the previous evening. Dr Chris Danbury, an independent expert, had visited and assessed Mrs W in the intervening time, giving evidence that Mrs W was at end of life care, but was not in a prolonged disorder of consciousness. This led him to recommend:
“reinstating the nasogastric tube, and then inserting a PEG, with a view to developing a care package that would enable her to spend her remaining time in the comfort of her own home”
As a result of this Serious Untoward Incident, a full investigation is to proceed at Board level. It remains a significant concern, that this case may not be a one-off.
This concern has been echoed by the family of Mrs W, and recognised by the judge who said:
“there is a legitimate concern that this has happened, or could happen, to other patients. I anticipate that the NHS Trust will be very alive to that”
The case also highlights the need for persons granted Lasting Power of Attorney to be respected, referred to and actively involved in the care and treatment of a patient.
In my experience, there is a general lack of awareness around the difference between Next of Kin or Nearest Relative and an LPA or RPR – and the different responsibilities that they hold. This case just goes to show the need for ongoing training and education around the Mental Capacity Act, and related legislation to ensure that people’s rights are protected, and they are treated with the utmost care and consideration.