Judge: Baker J
Citation:  EWCOP 60
This application, heard before Christmas, but only recently appearing on Bailii, concerned a 40-year old man (R) suffering from chronic paranoid schizophrenia who had been diagnosed with an incurable brain tumour. The acute trust responsible for his care sought a declaration that it was lawful and in his best interests not to undergo treatment for the tumour but rather to be provided with palliative care only.
R had a long history of mental health problems. He had been admitted to hospital under s.3 MHA 1983 on a number of occasions and had been in hospital continuously for nearly six years. His illness was characterised by a range of paranoid delusional beliefs and abnormal perceptions, including the belief that he was being interfered with by other people. He had also exhibited intermittent hostile and threatening behaviour.
There was an uncontested assessment as to his capacity holding that he lacked capacity to conduct the proceedings or to make medical decisions about the medical treatment for his brain tumour by reason of the disturbance in the function of his mind or brain. R had been inconsistent about whether or not he has a tumour, on occasions accepting that he has, on other occasions denying it.
Standard treatment for R’s brain tumour would be for the tumour to be removed by surgery and for the patient, thereafter, to receive a course of daily radiotherapy over a period of six weeks and possibly chemotherapy thereafter. The tumour was considered to be not curable so the aim of treatment would be to prolong his life and maintain his quality of life.
The judge noted that surgery had side effects which were exacerbated by the fact that R was overweight and because of his psychotic condition, it would be hazardous to use dexamethasone, a drug commonly used to reduce the risk of brain swelling post-operatively. Both radio therapy and chemotherapy also had side effects but the more important consideration on the facts of this case was that R would have to be compliant with the sessions of radiotherapy and chemotherapy.
The view of the clinicians and in particular the consultant oncologist was that the risks of the treatment were too high in relation to its potential benefits. R’s psychiatrist considered that managing R in the pre-, peri- and post-operative periods would be very difficult, that the treatment would create a significant risk to R and would be likely to cause him distress which would exacerbate his mental health symptoms. R’s family agreed with the view of the clinicians.
Baker J referred to ss.1(5) and 4 of the MCA 2005 and quoted the relevant passages of the Mental Capacity Act Code of Practice (paras 5.31 – 5.33). He also cited the Supreme Court case of Aintree University Hospitals NHS Foundation Trust v James  AC 591 and in particular these paragraphs from the judgment of Baroness Hale of Richmond:
the starting point is a strong presumption that it is in a person’s best interests to stay alive… this is not absolute. There are cases where it will not be in a patient’s best interests to receive life-sustaining treatment (para 35)
The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be (para 39).
The acute trust had completed a balance sheet exercise which concluded that taking account of all relevant factors, it was not in R’s best interests to undergo surgery and or radiotherapy and or chemotherapy, so that he should be provided with palliative care only. A factor pointed to by the trust was that, insofar as he had expressed any wishes, he had said that he does not want to have the treatment, although, he had been inconsistent in what he had said about those matters.
The Official Solicitor’s view was that it was the risk of starting but not completing radiology that was the key factor. The Official Solicitor submitted that this was a very difficult decision because of R’s young age and because the possibility of the treatment may afford him considerably longer life than he would be likely to have if the application were granted and the tumour is allowed to take its course. However, on balance, the Official Solicitor concluded that the consequences of starting a course of radiotherapy to his brain would be so injurious to his mental health and wellbeing and so unpleasant that it was appropriate to conclude he should not, in his best interests, undergo such a course of treatment.
Baker J granted the application. Having regard to all the circumstances, in particular the probability that R would not cooperate and the likely significant adverse side effects of the treatment on his mental health, it was in his best interests, in the widest sense, to make the declaration that was sought in this case.
The judge agreed with the analysis put forward on behalf of the trust. He held that there was a strong presumption that it was in a person’s best interests to receive life-sustaining treatment. However, looking at R’s welfare in the widest sense (Aintree), he considered that the balance plainly came down against surgery, radiotherapy, and chemotherapy. The treatment was not merely surgery but also involved post‑operative care, radiotherapy, and chemotherapy. It was the whole course of treatment that must be considered in making the decision.
Baker J stated that if he were to put himself in R’s position (as per Aintree), he considered it highly likely that he would not choose to have the surgery. Were he to start the treatment, he would suffer significant adverse effects, both in terms of the effects of the medication upon him, but also as a result of his likely non-compliance. Thus, the prospects of the treatment succeeding would be very much diminished. In any event, the evidence suggested that he would not be cured by the treatment. At most, his life would be extended for a period.
This case is another example of the Aintree judgment being followed with a judge putting himself in P’s position, in this case leading to the refusal of medical treatment. Interestingly, however, in this case, and whilst (in a similar fashion to Charles J did in Briggs at almost exactly the same time) Baker J expressly framed his decision by reference to what P would have chosen, in this case, the choice was not driven solely – or even primarily – by P’s identified wishes and feelings in relation to the proposed treatment. The case is therefore a useful reminder that it can be possible to construct a best interests decision even in the face of inconsistent wishes.