Judge: Hayden J
Citation:  EWCOP 11
This was an application by an NHS Foundation Trust for an order permitting a hysteroscopy and endometrial biopsy under general anaesthetic, with the objective of identifying the cause of a patient’s postmenopausal bleeding which had first been detected over 12 months previously. The procedures were essentially intended to check whether there was any cancer present. Further authorisations were sought, should there be a cancerous tumour or other significantly abnormal pathology, to authorise a keyhole hysterectomy under general anaesthetic.
The patient was a woman in her 60s (QZ) with a longstanding diagnosis of chronic, treatment resistant, paranoid schizophrenia which was chiefly characterised by disordered thought patterns, paranoid behaviour and a ‘grandiose belief structure’. The most pervasive of QZ’s delusions was that she was a young Roman Catholic virgin. She also had a deep seated long standing delusional belief that she as being poisoned by her carers or doctors and that she was at risk of being raped by them.
The proposed medical interventions in this case set up a conflict between the potential benefits to QZ’s physical health of having the interventions (detecting and getting rid of cancer if present) and the inevitable significant deterioration in her mental health which would result.
Hayden J heard from two experts in respect of QZ’s mental health, a Consultant Forensic Psychiatrist instructed by the Official Solicitor and QZ’s treating psychiatrist. The Consultant Forensic Psychiatrist concluded that the inevitability of a serious and potentially prolonged collapse in QZ’s general mental wellbeing ultimately weighed more heavily in the balance than the potential benefits involved in investigating the possibility of cancer. QZ’s treating psychiatrist took the view that, whilst it was important not to underestimate the enormity of the impact that the intrusive medical process would have, he was far more positive about her resilience and her ability to regain trust and learn to work with professionals again.
In directing himself as to the approach to take Hayden J cited the cases of Aintree University Hospitals NHS Foundation Trust v James and others  UKSC 67, Wye Valley Trust v B  EWCOP 60, M v Mrs N  EWCOP 76 (Fam), and Briggs v Briggs & Ors  EWCOP 53.
Hayden J considered that this was a case where the ‘balance sheet’ approach was not helpful as it did not “really accommodate the enormity of the conflicting principles which are conceptually divergent.”
Counsel for the Official Solicitor submitted that this case was analogous to the Wye Valley case where the wishes, feelings, beliefs and values of a person with a mental illness were said to be of such long-standing that they had become inextricably a facet of who that person was. In this case, readers will recall Peter Jackson J had rejected the submission of the Trust that wishes and feelings where they are “intimately connected with the causes of lack of capacity” would always be outweighed by the presumption in favour of life or alternatively would attract “very little weight.”
Hayden J stated in response to this submission that:
The wishes and feelings of those who suffer from delusional beliefs are not automatically, in my judgement, to be afforded the same weight as the beliefs articulated by an individual who has had the fortune to possess the powers of objective reasoning and analysis. There is nothing in Wye Valley v B which supports anything to the contrary. The kernel of the issue is that delusional beliefs should never be discounted merely because they are irrational. They are real to the individual concerned. The weight they are to be afforded will differ from case to case and, as always, will fall to be considered within the broader context of the evidence as a whole.
The judge held that the QZ’s case was very different from that of Mr B:
The circumstances of QZ’s life are very different. She has the prospect of many years ahead. The contemplated medical intervention is, objectively, of limited intrusion. She has shown the capacity to forge bonds of trust with professionals. She has developed resilience ‘to fight back at some point in the future’ and she has managed to live life in circumstances where she has a level of privacy, independence and dignity. Each of these factors reveal facets of her personality. They are just as much a part of who she is as are her paranoid and delusional beliefs which must not be permitted to eclipse them. The prospect that following medical investigation and or treatment and a period of profound mental distress QZ may recover a life which has both happiness and dignity incorporated into it, is one which is very real. Permitting the treatment here is, to adopt Peter Jackson J’s careful terminology, not fighting QZ but fighting on her behalf.
The judge authorised the treatment in the terms of the draft order put forward by the NHS Trust.
This is a useful further instalment in the line of cases which consider the wishes and feelings of those who have delusional beliefs. Hayden J made clear that he considered that the right answer is not black and white. In other words, there should not be full acquiescence to wishes and feelings based on delusional beliefs, but nor should there be an outright rejection. Rather, Hayden J identified the need for a rounded consideration where the beliefs are never discounted merely because they are irrational, but rather their weight differs from case to case when considered in the context of the evidence as a whole. As with IH, considered elsewhere in this Report, the case also serves as a Rorshach test for the application of the ‘new paradigm’ of the CRPD: in other words: ask yourself what you consider respecting QZ’s right, will and preferences dictates in the circumstances set down by Hayden J.
As a final procedural point, we note – and entirely understand why Hayden J “was profoundly troubl[ed]” that he was “being asked to consider the issues here over 12 months after the serious health concerns became known. I record that I have been provided with no satisfactory explanation for the delay. I re-emphasise that I am concerned with a vulnerable and incapacitous woman.”