Cardiff & Vale University Health Board v P [2020] EWCOP 8

Application by Local Health Board concerning dental treatment for P a severely autistic 17 year old with very little ability to communicate directly. The judgment is notable for Hayden J’s dismay at delays in bringing the application.

In January 2019 P had a CT scan to see if he required any dental treatment. That revealed some decay and impacted wisdom teeth. In October 2019, P’s parents observed that P was banging his head against a wall which they believed was a response to dental pain, that he could not communicate directly. As this behaviour deteriorated they also feared that P may have concussion or may have fractured his skull. However an application to the Court was made only on 20th February (and transferred quickly from Cardiff where no judge could be found to hear it).

In response Hayden J notes that

“this is the second time in the last few months when I have heard a case which reveals that a vulnerable person has fallen through the net the system tries to provide. Here, P has been permitted to suffer avoidably for many months. His needs, it requires to be said, have simply not been met.“

{the previous occasion was Sherwood Forest Hospitals NHS Foundation Trust and Another v H [2020] EWCOP 5]

He then states at [11] that:

“The philosophy of the Mental Capacity Act 2005 is to enable those who are vulnerable in consequence of incapacity to have equality of opportunity with their capacitous co-evals. Here, P's incapacity, his inability to communicate his distress, led to a failure to provide him with appropriate medical treatment.”

As to why this had happened, counsel for the Board (who did not try to shirk responsibility) identified [13] as

"it has arisen in consequence of "insufficient collaborative cooperation", to use her phrase, between the various disciplines required to identify P's best medical interests. In other words, a failure to share information and a failure to work together effectively."

Hayden J then concludes by saying that he delivered this ex tempore judgment so that it is on record that P’s behaviour was caused by pain and not indicative of his behaviour generally so that this episode does not have a detrimental effect on any arrangements made for P once he is once he is 18.  

Read the full judgment on Bailii