Sherwood Forest Hospitals NHS Foundation Trust v C



Judge: Hayden J

Citation: [2020] EWCOP 10

Possibly as a result of lessons learned in relation to the case of Mrs H, the same NHS Trust has brought a further application in relation to the treatment for cancer of another person, this time with very significantly greater speed.  In the present case, the Trust were concerned with a woman, C, in her 60s.  For some time, she had had paranoid schizophrenia.  She had been admitted, most recently, between June and October 2019, when she had stopped taking her medication.  Although the precise mechanism was not explained in the judgment, it appears that in consequence of that decision, she had suffered kidney failure, which could have been fatal. Happily, it was not. The woman attributed her recovery to God’s intervention.

Shortly afterwards, she presented to her GP with symptoms of post-menopausal bleeding. This led to a referral to the Trust. As Hayden J noted:

Two features require to be highlighted. Firstly, it was C who decided to seek out medical treatment in the first place and, secondly, C who pursued further treatment at the hospital to investigate the cause of the bleeding. All agree that, in this period, C appeared capacitous in her decision making. It requires to be clarified, though, that what she was determined to do was to investigate the source and cause of her bleeding and to see what the treatment options were. That, as emphasised by Ms Paterson, on behalf of Official Solicitor, is different from what has been in focus at this hearing, namely whether C should have a hysterectomy.

C underwent two investigations, to both of which it was considered she was able to give consent.  They revealed Grade 2 endometrial cancer.  She was referred to the cancer MDT, although the team were not aware of C’s diagnosis of paranoid schizophrenia.  Hayden J considered that, “[a]s far as a treatment pathway is concerned, it is irrelevant. But it is a troubling omission.”  When it was explained what the proposed treatment pathway was for her cancer, C

was markedly unresponsive and incommunicative: he describes her as “almost mute”. Because he was not alert to her underlying mental health difficulties, Mr Dudill [the consultant gynaecologist] was unsure as to whether this response was an indicator of shock at hearing such news or related to something more significant. He told me that, in those circumstances, he thought it best for C to spend some time with the cancer nurse, Ms Halsall, for a more informal chat in which she might feel more comfortable in articulating her concerns or expectations. Having facilitated that meeting, Mr Dudill later re-joined them, but noticed that C continued to be very withdrawn. However, despite her presentation, C agreed to go ahead with the operation and also signed the necessary consent forms.

However, it became clear in the following weeks that C had disengaged. When it was pursued, she was adamant that she did not want the treatment:

She expressed the view that “only God could cure [her] cancer” and, though properly and, in my judgement, sensitively challenged, she rejected any idea, for example, that God might act through the intervention of medical treatment.

A joint assessment of her capacity was undertaken on 19 February 2020 by a Mr Srini Vindla, a consultant gynaecologist and a Dr Caroline Innes, a consultant psychiatrist, described by Hayden J thus:

  1. […] Although neither is C’s treating clinician, it is perhaps significant to note that C was happy to engage with them, albeit constraining herself to her already expressed view. Dr Innes reminded C of a previous occasion when she had been treated by the doctors following an admission pursuant to the Mental Health Act, once when she experienced kidney failure and on another occasion, infected abscesses. C remembered these and told Dr Innes that she had recovered because it had been God’s will. She said that God had made her start drinking again. She attached no significance to the impact of the depot antipsychotic medication. At the interview Dr Innes reports C as being calm. She did not appear physically unwell and she had not obviously lost weight. There was no evidence of self-neglect. The pauses in her conversation might indicate some auditory hallucination but I did not get the impression from her statement that Dr Innes was convinced of this. Dr Innes described C’s presentation as “objectively flat but not depressed”. Her speech was said to be “quiet but coherent”. She refused to explain any of her reasoning but her concentration did not appear to be impaired.
  2. Dr Innes concluded that C still had symptoms of chronic schizophrenia and that there were suggestions of delusional beliefs. She considered C is unable to weigh the evidence required to make an informed decision in relation to her treatment and her inability to engage in weighing the consequences indicated a lack of capacity relating to her consent to treatment. It is important that I emphasise that Dr Innes considered whether a change in C’s treatment or medication for her mental illness might serve to promote capacity, but concluded that it would not.

The Trust therefore brought an application for a decision as to C’s capacity to consent to the treatment, and for endorsement (by way of a decision under s.16(2)(a)) of the plan.  It is not quite clear when the application was brought, but as it was seen by Hayden J on 26 February, it is must have been brought within a matter of days after the capacity assessment.

Hayden J was initially:

  1. […] very concerned that with a diagnosis of this kind, made on 30th December 2019, surgery was not contemplated until March 2020. I was also concerned that what was anticipated in these proceedings, by the lawyers, was a series of investigations, envisaging a hearing in a few weeks’ time. There has been delay. However, having heard all the evidence, particularly emphasising the limited aggression of the cancer (stage 2), I am satisfied that the delay will not have had adverse impact on C. By this I mean the cancer has not been neglected.
  2. Here, the delay was attributable primarily to the fact that C appeared, up to and including 9th January 2020, to have been entirely capacitous. Only when suspicions were aroused did it emerge that she was not. Although the initial referral to the hospital had flagged up the fact of her paranoid schizophrenia, it is clear that the information relating to that diagnosis was not shared to the extent that it should have been with the team of treating clinicians. I see no reason why that should have occurred. In the future, where there is such a diagnosis, it should be regarded as requiring prominence in the medical records. This is not intended in any way to stigmatise the patient, but to seek to ensure that they are provided with treatment in a way which places them on an entirely equal footing with capacitous individuals in the same situation.
  3. The second reason leading to the delay arises from the anxiety that all medical professionals understandably face when they are required to contemplate the restraint or coercion of a resistant, incapacitous patient. These are incredibly difficult challenges, but delay only serves to compound that challenge. Those faced with these difficulties must always recognise that delay is likely to be inimical to their patient’s care and that the time scales for intervention constructed around the patient must focus unwaveringly upon that patient’s best interests. The delay here has not exacerbated the risk arising from the cancer but it may have, indeed I consider it likely to have added avoidable stress to C and her family.

[…]

  1. Because I was not prepared to countenance delay, the case was called in and it has been possible, with the assistance of extremely experienced counsel, to resolve the issues today.

In considering C’s best interests, Hayden J noted the following:

  1. When C was a younger woman, before the cloud of paranoid schizophrenia descended upon her life, she was noted to have been a very happy and outgoing young person. Her interest in religion began only after her mental health problems developed. I hope that these religious beliefs may, in some way, have been a comfort to C. But it requires to be identified that her expressed religious beliefs have become a facet of her mental health problems and a channel for delusional thoughts. For example, she has in the past believed herself to be pregnant, carrying the child of God. This has been a delusion of such vibrancy for her that she has carried it through to purchasing baby clothes for the child she believed she was carrying. It is important therefore to disentangle capacitously held religious beliefs from the delusional views here. It requires some sensitivity.
  2. The preponderant evidence that I have sought to highlight indicates a woman who wanted to address her post-menopausal bleeding, to identify the appropriate treatment and cooperate with the investigative process. As I have stated, whilst C still appeared capacitous she signed forms consenting to treatment. Subsequently, perhaps in consequence of the shock, she clearly lacked capacity and her rejection of the treatment, which is clinically so manifestly in her best interests, is predicated on a delusional belief structure which manifests itself in the language of religion.
  3. Of course, the fact that the clinical best interests are clear does not mean, automatically, that C’s ‘best interests’ more generally, lie in her having the surgery. That can only be determined by a wider examination of C’s circumstances, consideration of her relationships, endeavouring to understand who she is and the code by which she lives her life.
  4. In considering this wider canvas it emerges that C, with the support of her mother, has a full and varied life. She plainly has a strong, important relationship with her mother and she has an enduring commitment to her niece, of whom she speaks with affection. When capacitous, there is nothing at all to indicate that she is in any way disenchanted or weary with life. On the contrary, the indicators are that she is enthusiastic for it, notwithstanding the challenges that her mental health condition has posed to her over the years.

Hayden J was therefore:

27 […] satisfied that it is in the best interests of C to have the surgery. I do not find that to be a delicate balance. There is amongst all lawyers, doctors and judges a strong instinct to preserve human life (Aintree University Hospital NHS Trust v James [2013] UKSC 67; Kings College Hospital Foundation Trust v Haastrup [2018] EWHC 127 (Fam)). Here there is clear evidence of a likely prospect of a successful outcome, where the alternative is that C would die. Moreover, as I have indicated, there is much to indicate that C, when capacitous would want to live. Her decision, as I have detailed above, to seek out treatment and in fact consent to it orally and in writing I consider to be a powerful indicator of her wishes when capacitous. Accordingly, I am able to make the declarations the Trust seeks.

However:

  1. In this case, it has not been possible for the Trust to put a plan together outlining the details of the coercion and/or restraint that would be considered to be proportionate in the event of C’s resistance. The absence of this plan is a direct consequence of my decision to cause the case to be heard quickly. I am able to make the best interest declarations I have indicated but they are not to be given effect until the plan has been put together and approved initially by the Official Solicitor and subsequently by this court. In the event that such approval is not forthcoming the case is to be restored before me, on short notice if necessary.

Comment

Procedurally, this case indicates how it is possible for clinicians to work effectively with the Trust’s legal services to move speedily when it has been recognised that an application is required (as to which, see further the recent Practice Guidance).

On the facts of the case, as presented here, it is not entirely easy to escape the impression that a certain amount of (understandable) intellectual footwork was required to address the position that the doctors had proceeded on the basis that C had had capacity to make the decision until such point as she had disengaged.  Such a phenomenon is not uncommon (see also the discussion of this, again in the context of paranoid schizophrenia, in Heart of England NHS Foundation Trust v JB [2014] EWCOP 342).   The recording of the capacity assessment carried out by the Trust did not explain the change in position, and it is interesting that Hayden J clearly felt that he did need to give an explanation – suggesting that it was “perhaps in consequence of the shock.”   Although it is not possible, nor – for these purposes – relevant, to reconstruct the earlier position, it may equally be said on the logic of the recording of the capacity assessment before the court that C had not had capacity at any point to make the decision.

Although for different reasons, this might be thought to put into context Hayden J’s observation that a diagnosis of a mental health condition should be given prominence in medical records.  On one view – and as he himself recognised – this could be seen as stigmatising.  On another view, this could be seen as precisely the sort of situation in which there was cause to consider whether or not any consent given by C would be capacitous – at which point the cancer MDT should have been alerted to it.  After all, had she consented, not disengaged, and the treatment gone ahead, we might legitimately want to know whether this was on the basis that she had given consent, or on the basis that there was no such consent, but the doctors could rely upon the provisions of s.5 MCA 2005.

Finally, and as Hayden J was aware the case is another example of how the law finds the interplay between mental disorder and religious belief complex.  In centuries past, and indeed in many communities today, the sentence “her rejection of the treatment […] is predicated on a delusional belief structure which manifests itself in the language of religion” might not make immediate logical sense.

CategoryBest interests - Medical treatment Date

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