United Lincolnshire Hospitals NHS Foundation Trust v Q
Summary[1]
Q was 57-year-old woman, with profound and lifelong learning disabilities together with epilepsy. She also had impaired eyesight and was registered blind. She had mobility difficulties which necessitated the use of a wheelchair. Those who cared for her believed her to suffer from some form of autistic spectrum disorder and it is clear that, from time to time, she displayed what was described as extremely challenging behaviour to her carers. She had lived for about 14 years in a supported living placement with two other residents and had 24-hour care and supervision. She was highly resistant to changes in the very rigid structure of her daily life and she could reject attempts to provide her with personal care. For many years, she had resisted any proper or thorough dental hygiene.
Throughout 2018, increasing concerns were expressed about Q's teeth, and about the pain that she appeared to be experiencing. By September 2019, a full dental clearance under general anaesthetic was planned, but on the day of the operation, it was cancelled as Q had a prolonged seizure of around six minutes whilst getting ready to come to the hospital.
Best interests meetings were held on 20 November 2019 and 11 February 2020 and it was agreed by everyone present that it would be in Q's best interests to undergo the proposed dental surgery and to receive intramuscular sedation to facilitate her transfer to and from hospital. Although not clear from the judgment, it appears that it must have been the consideration of sedation which triggered the application to the Court of Protection (there is nothing to indicate why the previous intention to carry out the full dental clearance had not been thought to merit an application).
The NHS Trust made an application to the court for an order and declarations that Q lacked the capacity to make decisions about her dental treatment, in particular, whether she should undergo a full dental clearance under general anaesthetic. It was submitted that it was in her best interests to undergo full dental clearance under general anaesthetic to relieve the pain and discomfort caused by periodontal disease and to receive sedation to facilitate her transfer to hospital to undergo such surgery. The applicant Trust was particularly concerned that the deterioration in Q's oral health was compromising her health generally, causing her pain, and complicating her enjoyment of food which was identified as being one of her great pleasures in life.
Gywnneth Knowles J identified that there was "a wealth of evidence before the court that Q lacks the capacity to conduct these proceedings and to make decisions about her dental treatment," it being "plainly evident that Q has no ability to understand the most basic of discussions about oral hygiene or dental treatment. She cannot, in my determination, understand, retain, use, or weigh any of the information relevant to the decision whether or not to have such treatment, specifically full dental clearance, or the sedation and transport necessary to carry out such treatment" (paragraph 16).
Turning to best interests, there was clear medical evidence before the court outlining the risks and benefits. On the basis of the evidence before the court, Gwynneth Knowles J considered it reasonable to infer that Q continued to experience dental pain. She noted that the Official Solicitor was:
22 […] anxious to ascertain whether alternative and less invasive treatment options had been considered by the Trust. On receipt of answers to her questions from Dr A [the associate specialist in oral surgery], the Official Solicitor is reassured that a comprehensive assessment of Q's dental health will be carried out once she has been conveyed to hospital and, if there are any teeth which are sound and firm and likely to remain so for a reasonable period, that Dr A will exercise her clinical judgment to decide whether these teeth should be retained rather than extracted. Though as a result of the COVID-19 crisis the Official Solicitor has been unable to instruct an independent expert in special care dentistry, it is accepted by her that the evidence filed in support of Q's dental care plan is comprehensive and thoughtful.
Of some note is that:
- […] Again, by reason of the COVID-19 crisis, the Official Solicitor has been unable to visit Q to ascertain her wishes and feelings. She does however accept, having read the minutes of the meeting undertaken by Ms B with Q on 30 April 2020, that Q's ability to communicate is very limited indeed due to her severe learning disability. It is thus difficult to ascertain with any certainty what Q's wishes and feelings are about the proposed dental treatment. I agree.
- […] when anxious, Q becomes extremely aggressive, damaging her wheelchair and injuring staff and she is likely to become anxious and distressed if any attempt is made to take her to hospital voluntarily. The administration of ketamine covertly before departure allows for Q to be sedated when travelling to and fro from hospital by ambulance. Two previous occasions, as I have already indicated, to bring Q to hospital have been unsuccessful as no chemical restraint was used. Q became upset and had a prolonged fit. I accept that Q needs to be sedated to be safely transferred to and from the hospital. The use of a sedative administered covertly and safely, as happens with her annual flu injection, is proportionate and the least restrictive measure in the circumstances of this case.
- […] the proposed plan for medical and dental treatment is in Q's best interests. The plan is supported by all those who know Q well including her own sister. Though there is, of course, inherent risk in the administration of a general anaesthetic, the evidence of a consultant neurologist with a special interest in epilepsy indicates that the risk to Q is small and can be appropriately managed.
- I have also considered that after surgery, Q's recovery is likely to be both painful and upsetting for her because she lacks the understanding to recognise what has happened to her and why it has happened. However, this will be transient discomfort after which she should be able to enjoy her food and derive pleasure from eating without pain. That transient discomfort has also to be balanced against the significant risk of, if untreated, Q experiencing worsening pain where she refuses food, becomes malnourished, and is at risk of developing sepsis. In my view, the course of action proposed by the applicant trust is necessary and the least restrictive possible course in order to carry out the dental treatment that Q urgently needs and has needed for some time on the evidence before me. I am satisfied that it is in her best interests to make the order sought in respect of dental treatment and I approve the contents of the draft order which has been placed before me.
By the time that matters had come to court, it appears clear that there really was only one outcome that could enable Q's ability to eat without pain and enjoy her food which, as Gynneth Knowles J identified, would vastly improve her quality and enjoyment of life. However, as with so many cases, the judgment is only the tip of the iceberg, and this reader at least is left wondering (1) whether Q had always been as resistant to support with dental hygiene as she had become in later years; (2) if she had, how had she reached her 50s without more serious problems; (3) if she had not, what had changed in her life and/or the way in which those around her supported her to make her more resistant; (4) what triggered the change in thinking from the relevant professionals to make them think that an application to court was now required in circumstances where (it appears) they had previously been content to administer a general anaesthetic to Q and carry out a full dental clearance on the basis of the 'general authority' in s.5 MCA 2005.
[1] Note, Nicola having been involved in the case, she has not been involved in writing this report.
