Judge: Cobb J
Citation:  EWCOP 53
In this case, Cobb J was required to consider an urgent application for a best interests decision with respect to carrying out chemoradiotherapy and an endoscopic resection and/or tracheostomy (as well as authorising any deprivation of liberty).
TC was a 69-year old with advanced cancer of the larynx, which was only diagnosed on 7 September 2020 and had become increasingly life-threatening. She suffered from longstanding anxiety for which she took anti-depressant medication. The deterioration in her health meant that she required hospital admission on 6 October 2020.
Following her diagnosis on 7 September 2020, she was offered two treatment options – surgery or chemotherapy (“CRT”). The surgery would involve a total laryngectomy (removal of TC’s voicebox) and bilateral neck dissections (surgical removal of lymph nodes in both sides of her neck). Depending upon the histology following surgery, she might still require radiotherapy. At that stage on 7 September 2020, and following discussions, TC made a capacitous decision to undergo a course of CRT.
On 9 September 2020, TC presented as confused and her anxiety levels were noted to be higher, which was not unusual given the diagnosis. Her presentation, however, deteriorated; and her behaviour became increasingly erratic. On 16 September 2020, she met with the consultant oncologist; and discussed the proposed treatment again. She signed the consent form for CRT. She attended a planning appointment on 22 September 2020 and no concerns were raised. She was able to discuss the treatment and side effects. After that appointment, however, there was a gradual decline in TC’s physical and mental health. She was unable to discuss the proposed treatment and she behaved irrationally. She refused to eat and drink and became too weak to get out of bed.
TC was assessed as lacking capacity to make decisions regarding the proposed treatment as a result of her depression and chronic anxiety on 7 October 2020. The capacity evidence before the court concluded that the impairment of TC’s mind was such that she was unable to make a decision to proceeding with a treatment option, namely the CRT. She was also unlikely to regain capacity in the short term, and particularly within the relevant timescales, given the urgency of the treatment – the progression of her condition meant that, if nothing were to be done, she would die within the next few weeks.
The Official Solicitor obtained and presented a second opinion to the court on TC’s mental capacity. That opinion concluded:
TC has demonstrated that she is able to understand and retain information in regard to her diagnosis and the treatment interventions available. She is also able to communicate her decision. However, as a result of her depressive illness, she is experiencing symptoms of hopelessness and does not consider that she has a future. As is typical in severe depression she is experiencing catastrophic thinking. As a result, she is unable to weigh up the information she has been given in order to make a capacitous decision. It is therefore my view that TC lacks capacity to make decisions about her medical treatment. (emphasis added)
On the basis of the evidence before him, Cobb J was satisfied that TC lacked capacity to make a decision about this medical treatment.
Regarding the treatment options, the surgery and CRT offered a 60% chance of being curative (meaning that TC had a 60% chance of overall survival for 5 years after treatment; thereafter a patient’s odds of longer term survival are significantly improved).
The options had, however, been rendered more complicated because the tumour had grown significantly. Preparatory work was therefore required that would debulk the tumour (either through a micro-debrider, last treatment, or treatment that vaporises the tumour). If one of these procedures failed, then a tracheostomy would be required. It was acknowledged by all the treating doctors and the family that TC would not what this, but it was necessary to ensure the integrity of the airway before CRT is commenced.
The expert evidence indicated that the long-term cure rate was in the region of 60-70%. He also laid out the survival rate if all treatment were refused, as well as the risks and complications associated with the procedures.
In terms of TC’s views, she had signed a written consent form to the treatment on 16 September 2020 (when she was capacitous), but she subsequently refused the treatment. Her family supported the treatment.
In considering best interests, Mr Justice Cobb started with the presumption that it was TC’s best interests to stay alive (Aintree v James  UKSC 67); and observed that without the proposed treatment TC would die, and soon. He was entirely satisfied that the proposed treatment was in her best interests; and that it was the least restrictive and/or interventionist. He observed that the treatment proposed was the closest to what he found TC’s wishes to be, even though it is not exactly what she consented to when she was capacitous. He was satisfied that it was in TC’s best interests to secure her airway before beginning the CRT.
The case shows the importance of promptly obtaining expert evidence (with the court’s permission) in cases such as this, even when the application is urgent. The expert evidence on capacity, in particular, was able to explain to the court’s satisfaction how TC had gone from being able capacitously to decide upon her medical treatment to now being in a position where she lacked that capacity – i.e. how, as a result of the catastrophic thinking (associated with her severe depression) she was unable to weigh up the information relevant to the decision in question.