University Hospitals of Derby and Burton NHS Foundation Trust & Derbyshire Healthcare NHS Foundation Trust v MN

Judge: Mr Justice Hayden

Citation: [2021] EWCOP 4

Summary

This case concerned the medical treatment of MN, a 60 year old man with suspected bladder cancer. Having co-operated with an ultra-sound, he subsequently stopped co-operating with any further investigations or treatment. In particular he would not co-operate with the Trust’s initial investigation and treatment plan to undertake a CT scan and if clinically appropriate perform a cystoscopy procedure with surgery performed via telescope (transurethral resection of bladder tumour (TURBIT). Without such treatment (and in the event that MN had bladder cancer) there was a risk that he would suffer a painful deterioration due to blood clots forming in his bladder and could be prevented from urinating. The surgery would excise or debulk the tumour enabling MN to urinate painlessly.

The treating Trust together with the Trust responsible for meeting MN’s mental health needs in the community (MN having a diagnosis of paranoid schizophrenia), sought orders from the court authorising them to take steps to investigate the cause of MN’s difficulties by way of a CT scan and if appropriate perform a TURBIT under general anaesthetic. These steps would likely require a degree of restraint which the applicant’s considered would amount to a deprivation of MN’s liberty.

Which (if any) of the longer term treatment options for bladder cancer would be appropriate for MN was unknown, and no orders were sought in respect of this at the interim hearing (the options being radiotherapy, surgery to remove the bladder, chemotherapy or palliative care). It was however made clear that radical treatment was unlikely to be offered to him if he was unwilling to comply with it.

Hayden J was satisfied that it was appropriate to make a s.48 declaration that there was reason to believe that MN lacked capacity to both conduct the proceedings, and to make decisions about the investigations and treatment of his identified kidney obstruction.  The more difficult question for the court was whether it should authorise the ‘emergency’ treatment plan in advance of the final hearing (namely the CT scan and TURBIT). Hayden J emphasised that MN had not been informed of these proceedings and so had not had an opportunity to express his wishes and feelings in relation to receiving pain-relieving emergency treatment for blood clots, as distinct from the primary treatment for his suspected bladder cancer.

The applicants recognised that they could rely on:

• Section 6(7)(a) MCA 2005 (which allows a person to provide life sustaining treatment while a decision is sought from the court)
• Section 6(7)(b) (which allows a person to do ‘any act’which they reasonably believe to be necessary to prevent a serious deterioration in MN’s condition while a decision is sought from the court)
• Section 4B MCA 2005 (which authorises steps to be taken which would deprive MN of his liberty if the steps consist wholly or partly of giving MN life-sustaining treatmentor doing any vital act whilst a decision is sought from the court).

Nevertheless, despite the potential legal cover that this would provide them, the applicants pressed for authorisation of their treatment plan on the basis that there was an 80% chance that the emergency treatment would be required before the final hearing, and it was far preferable for an order to be made now rather than during an emergency hearing (which might result in delay of the treatment being provided to MN).

Hayden J held (at paragraph 24) that “it would be inconsistent with the principles of the MCA 2005 for the Court pre-emptively to authorise the deprivation of MN’s liberty in circumstances where both the nature of the potential emergency situation could be anticipated (the foreseeable impact of blood clotting related to bladder cancer), and where MN’s wishes and feelings might be sought and recorded in advance.”

Hayden J directed that the interim order sought by the applicants would only be operative (pending the final hearing) if a number of conditions were met:

• MN was in pain and/or discomfort and/or was unable to urinate;
• MN’s views had been canvassed regarding having emergency treatment (it having been explained to him that such treatment would release him from pain and/or discomfort and/or would enable him to urinate);
• The emergency treatment would include releasing any blood clots in his bladder (or other clinically indicated and operable obstruction) preventing him from urinating;
• MN continued to express a resistance to emergency treatment.

Comment

This judgment shows the critical importance (and rightly so) of obtaining P’s wishes and feelings about any treatment plan being put before the court. Had the Trust known what MN’s wishes and feelings about the proposed emergency treatment were, Hayden J might have acceded to the request to authorise the emergency treatment absent the conditions.

Best interests - Medical treatment, Best interests 19th January 2021