Cambridge University Hospitals NHS Foundation Trust v BF
This case concerned an application by Cambridge University Hospitals NHS Foundation Trust ('the NHS Trust') in relation to BF, a 36 year old woman with a diagnosis of paranoid schizophrenia. At the time of the hearing BF was detained in a mental health unit pursuant to section 3 of the Mental Health Act.
BF had been referred to the NHS Trust with a history of bloating and abdominal distention that had worsened over a period of months. After a CT scan, examination and blood tests the medical consensus was that BF was likely to have ovarian cancer which required surgery. The planned surgery would involve a total abdominal hysterectomy which would mean the loss of BF's fertility.
BF was originally assessed as having capacity to consent to the surgery but following a problem with the anaesthetist finding a vein, BF suffered a psychotic episode and BF refused surgery stating that her distended abdomen was not due to a tumour but 'bad air'. Following this episode there were various assessments of BF's capacity the last of which concluded that she lacked capacity and so the application was made to the court.
The Trust sought the following declarations:
That BF lacks the capacity to consent to or refuse medical treatment, in particular total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment
It is lawful being in BF's best interests to undergo total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment.
In his judgment, MacDonald J recapitulated his summary of the principles applicable to the assessment of capacity from the C case. He also gave a pithy summary of the key principles applicable to the determination of best interests, noting in so doing that, whilst the "balance sheet is a very useful tool, the court must still come to its decision as to best interests by reference to the principles he had set out which were grounded in s.4 of the MCA 2005" (para 29).
The medical evidence before the court strongly suggested that BF had stage IIIB ovarian cancer. Mr L (Consultant and Lead Gynaecological Oncologist) considered that the probability of ovarian cancer was at least 80% and in this case even higher than 80%. The Official Solicitor acting on behalf of BF did not challenge the medical diagnosis.
Mr Justice MacDonald concluded that BF lacked capacity to decide to consent to or refuse the identified medical treatment. He further concluded that it was in her BF's best interests to undergo the medical treatment that her doctors wanted to give to her. He placed particular emphasis upon the fact that she had previously consented to the proposed surgery when she had capacity to do so. Whilst MacDonald J gave "anxious consideration" to the fact that BF had said that she wanted to have a child and the proposed treatment would render her infertile, he also had in mind that she had consented to the treatment which she knew would render her infertile prior to the episode when the anaesthetic could not be administered causing her to have a psychotic episode. Given the prognosis the judge also considered that if the hysterectomy did not take place she would die within a period much shorter than that required to carry a baby to term.
On its facts, the case represents the sensitive application of the principles of capacity and best interests set out in the MCA to an extremely difficult dilemma. Of note, however, are the following:
- The application was, again, for declarations rather than decisions. Sir James Munby P in Re MN made clear his view that where (as here) what is being sought is a decision (i.e. to consent to the procedures in question), what should be sought is an order under s.16(2)(a) MCA consenting on P's behalf. A declaration as to lawfulness under s.15(1)(c) provides added comfort to the treating clinicians (but should not be framed as a declaration as to lawfulness and best interests, as s.15(1)(c) does not provide for such to be made);
- The unusual reporting of a happy ending. Before judgment was handed down the NHS Trust informed the court that the surgery had been performed as planned and the results of the testing undertaken during the operation indicated a benign or borderline tumour with no evidence of macroscopic residual disease. Mr L was therefore able to preserve BF's uterus and the right fallopian tube and right ovary, thus preserving BF's ability to have children in the future should she so wish. The tragic choice described in the judgment between a likely fatal prognosis and certain infertility was thus averted.