The High Court awards 80% costs: A case study on delayed legal proceedings
15th August, 2024
The High Court awards 80% costs to the Official Solicitor against an NHS Trust who failed to act swiftly to bring a treatment case before the Court.
Re GH (Mastectomy: Best Interests: Costs) Sandwell and West Birmingham Hospitals NHS Trust and GH (by her Litigation Friend the OS) 28 September 2023
Summary
In a judgment handed down in September, Poole J awarded 80% costs to the Official Solicitor as a result of the Trust’s unreasonable delay in bringing the issue of whether GH (a woman who lacked capacity to make the requisite decision about her medical treatment) should undergo mastectomy treatment for diagnosed breast cancer. The delay of 6 months (between March and September 2023) undermined the role of the OS and prevented her from undertaking pre-issue work which may have helped to resolve some of the issues which ultimately formed part of Trust’s application.
Background
- GH , a 52 year old woman diagnosed with a schizoaffective disorder was diagnosed with breast cancer On 2 March 2023. Treatment via right mastectomy and axillary node clearance was recommended with post operative radiotherapy. She was told that if she did not undergo the necessary treatment the disease would progress, potentially rapidly, but that with treatment she would have a 90% chance of 5 year survival.
- GH was suffering from delusional beliefs connected to her mental ill health and did not believe that she had cancer. She refused all treatment.
- The Trust made an application for declarations that GH lacked requisite capacity and that it was in her best interests to undergo treatment in September 2023 on an urgent basis, the OS having been given notice of the application at the end of the preceding week.
- The matter came before the judge in the urgent cases list on 26 September 2023 and on 28 September an order was granted authorising treatment in GH’s best interests.
- The OS sought a costs order of 100% of her costs against the Trust on the grounds of excessive delay in issuing the proceedings. In accordance with the usual convention, the Trust had agreed to pay 50% of OS costs prior to lodging the application.
- The Court was asked to adjudicate on the issue of costs.
The delay
The judge heard evidence that on 5 May 2023 an MDT meeting of GH’s surgeons and her psychiatry team was convened to determine how to proceed in GH’s case. It was determined that she should undergo a capacity assessment. At that time GH was receiving psychiatric treatment in the community and it was decided that her GP and a psychiatrist from the mental health home treatment team should complete this. This was not done. On 23 May she was detained under the Mental Health Act in hospital for a period of 3 weeks before being discharged to her home in the community. On 8 June a further MDT took place and it was noted that no capacity assessment had been completed. An assessment was arranged and on 30 June this was carried out in the community. GH was assessed as lacking capacity to make decisions about the treatment she needed because of her ongoing psychosis. GH was refusing treatment. The treatment plan of mastectomy and node clearance was confirmed.
The NHS Trust’s legal team were consulted and it was determined that an application would need to be made to the Court of Protection to authorise the treatment. GH was then recalled to hospital for further psychiatric treatment on 27 July. A further MDT was convened to discuss the case on 7 August which GH attended. She was told that an application would be made to the CoP. A further capacity assessment was carried out on 7 September which confirmed that GH lacked the requisite capacity. An application was finally made in September seeking an urgent hearing of the case.
Judgment
The judge concluded that he had discretion to award costs under s 55 Mental Capacity Act. Further, under CoP Rule 19.5 the court could depart from the general rule that there be no order for costs in welfare cases when, having regard to all the circumstances, the conduct of the parties, before, as well as during the proceedings was such as to justify it . He stated that the lateness of the application had undermined the role that the Official Solicitor should play in such proceedings, she had not been given time to consider the evidence, meet with GH and ascertain her wishes and views or probe the evidence, ask questions and if necessary seek independent expert evidence. Neither had the OS been afforded time to liaise with GH’s family and form a view as to her best interests.
The making of the application at short notice had placed the court under considerable pressure to find time to hear it on an urgent basis and risked undermining open justice. In addition, the lateness of the application had caused disruption to the clinical staff (as GH’s planned surgery had to be postponed and hastily rea-arranged)and the key performance standard issued by NHS England for a maximum target of a 62 day period between referral and treatment of cancer had been undermined. It was clear by May 2023 that an application to the CoP would need to be made and there was no reasonable excuse for delaying making the application thereafter. The fact that the OS had initially sought and the Trust had agreed to meet 50% of the OS costs did not tie the hands of the court. An 80% costs order against the Trust in the OS’s favour was made.
Conclusion
It is essential to make welfare applications as swiftly as possible in all cases. Delay is never justified when a patient is potentially put at risk by it. Even where there are logistical difficulties in arranging treatment, like in this case where GH was both in the community and detained in hospital for periods of time under the Mental Health Act, all reasonable steps to gather evidence and get the application before the court should be taken. The OS should be informed of any application at the earliest opportunity and an agreement should be given in writing to the OS that 50% of her costs will be met by the applicant Trust, so as to enable the OS to commence work without delay.
Leaving aside the issue of treatment outcomes, Trusts should be mindful that any delay may lead to an application for costs against them which, following this judgment may more readily be granted if the court deems it to have been unreasonable.
For further information, please contact Georgina Rowley or one of our specialist health and advisory care lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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