A NHS Trust v (1) K (2) Another Foundation Trust
Summary: K had cancer of the uterus. She could be cured by a potentially life-saving operation. However, because of other co-morbidities (in particular her obesity) and other factors there was a considerable risk that she could die during the operation or in the post-operative recovery period. Because of chronic and long-standing mental illness, she lacked the capacity to make an informed decision, denying that she had cancer at all. She opposed and was resistant to the operation. The medical team at the hospital considered that she would benefit from the operation and would like to perform it. K's three adult sons (who were not formally represented, but from the Court heard) all strongly desired that she should have the operation and felt that the potential benefit outweighs the risk. The Official Solicitor, relying upon the evidence of an independent intensivist/anaesthetic expert, considered that the operation was too risky because of the risk that she would die during the overall operative period, in particular during the recovery phase, a risk that the expert placed at some 40-50%.
Holman J was therefore asked to determine whether it was in K's overall best interests to have the operation or not. Having set out in detail the evidence as to risk during the post-operative period, he noted (paragraph 36) that the operation had previously been scheduled for a date in July 2012, but on that occasion she had become so agitated and resistant while in the ward prior to anaesthesia that it had to be abandoned (this being the event that triggered the application to the Court of Protection). This raised the "very serious issue and concern as to how, even if the court determines that the operation is in her best interests, it can actually be achieved without her pre-operative compliance…" Holman J accepted that it would be objectively in K's best interests to be "less than frank" with her so as to achieve her admission to hospital; and that whilst such a course of action "might appear to offend the legal requirement of section 4(4) of the Mental Capacity Act 2005 [that the person be permitted and encouraged to participate in the relevant decision/act] but that is qualified by the words 'so far as reasonably practicable" (paragraph 37). However,
"38. Greater difficulties arise… once she is at the hospital and the operation is scheduled to begin. She must be told in sympathetic and straightforward language what is proposed. Mr. J himself would not be willing to operate without having first told her. The sons and others predict, however, that no sooner is she told this than, just as in July, she would become physically resistant. This has led to much discussion during the evidence and the hearing as to the legality, ethics and medical impact of the use at that point of physical restraint so that she could be sedated and later anaesthetised.
39. I can, however, cut through it. There is medical evidence, to which I have already referred, to the effect that it could be very risky to apply physical restraint to Mrs. K in view, in particular, of her prolonged QT interval. It would be particularly risky immediately prior to anaesthesia. No one now advocates the use of physical restraint and it would not be employed at any stage pre-operatively.
40. A separate and discrete issue is, however, whether she might first be lightly sedated before being told, so that, it is hoped, she is compliant and not resistant as in July. This, too, has been the subject of considerable discussion and evidence. In the upshot, the declaration which the applicant Trust invite me to make on this issue (if I consider that the operation as a whole may take place) is that 'it shall be lawful for sedation to be administered by, and thereafter continuously monitored by, a qualified anaesthetist before Mrs. K is informed that it is proposed to carry out the [proposed] surgery and anaesthesia'.
41. Again, the sons have pressed upon me the logical argument that if it is in her overall best interests to have the operation, it must be in her best interests to have the sedation, unless medically contraindicated at the time, to enable the operation to take place. If I do decide to make an order permissive of the operation, the Official Solicitor does not oppose a consequential declaration in the above terms.
42. As to the lawfulness of doing so, my attention has been drawn to a decision of Sir Nicholas Wall, President, in DH NHS Foundation Trust v PS  EWHC 1217 (Fam). In that case a hysterectomy was in the best interests of a patient who had agreed on previous occasions to undergo the operation, but had been overcome on the day by fear and needle phobia. The President made an order which approved a plan which included provision for covert sedation at the patient's home with a sedative drug mixed with a soft drink such as Ribena. (In that case there was provision also for the use of force if necessary to sedate her and convey her to hospital - see paragraph 19 of the judgment - but there were not the medical risks associated with co-morbidities that there are in this case.)
43. Although there are many factual differences between that case and this one, that authority does satisfy me that if it is in Mrs. K's overall best interests to have the operation, it can be lawful, and in her best interests, to sedate her to enable it to take place, and lawful to do so before she is told, after sedation but before anaesthesia, what is planned. There must be a qualified anaesthetist (not necessarily at that stage Dr. VB herself) throughout.
44. I do consider that an ethical issue may arise as to the degree of sedation and whether the surgeon can ethically proceed to operate unless he has given to the patient an adequate account of what he proposes to do while she retains sufficient awareness to hear it and take it in. But that is an ethical matter for him. I am satisfied that a declaration in the terms I have just quoted would, on the issue of sedation, be in her best interests and is lawful."
Turning to the question of K's overall best interests, Holman J found that the only really significant countervailing factor to place in the balance sheet against the benefits of carrying out the operation was the risk of death in the overall operative period. Having reviewed the evidence on this point, he concluded (paragraph 50) that, viewing the evidence as a whole, the independent expert whose views were relied upon by the Official Solicitor "may have been unduly pessimistic. The evidence as a whole supports that the actual risk of mortality peri-operatively for this patient, if there is no attempt at lymphnodectomy, is closer to 5% than to 40 or 50%. Even if the risk is of the order not of 5% but of 10%, it seems to me to be a risk worth taking. I differ, therefore, from the Official Solicitor not because I would regard a 40 to 50% risk as acceptable, but because it seems to me, on all the available evidence, that although the risk of post-operative mortality is high, it is not so high as the assessment and position of the Official Solicitor assumes." Given the considerably more speculative benefit to be derived from a lymphnodectomy, the Trust was ultimately not pressing for a declaration to extend to authorising such a procedure.
Holman J then turned to who should have a power of 'veto,' discussing the question thus:
"52. No one, nor any court, can order or require any doctor to take any step. The court can only permit it. It follows, of course, as I wish to make crystal clear, that my intended order will permit and render lawful the procedures described, notwithstanding the lack of consent of the patient. Right up to the last moment, however, it must remain a matter for the individual professional judgement of Dr. VB [the consultant anaesthetist] and Mr. J [the consultant gynaecological surgeon] whether they think it justifiable to embark on the sedation, the anaesthesia and the surgery. Each of them has, therefore, a practical power of veto. I intend, nevertheless, to make it express on the face of the order that the proposed declaration ceases until further order to be of any effect if at any stage prior to the actual sedation, anaesthesia or surgery either Dr. VB or Mr. J notifies her/his colleagues that she/he considers it should not take place."
Given the particular nature of Mrs K's case and of her multiple co-morbidities, together with the high risks of post-operative complications and of post-operative mortality Holman J considered that a temporary power of veto should also extend to Dr W, the intensivist (paragraph 54) if she considered that the risk of post-operative mortality had simply become too great; because of her particular psychiatric complications and needs, he also considered that the professor of psychological medicine who would be in charge of her psychological wellbeing whilst she was at the hospital should also be given an effective power of veto (paragraph 55). Turning to the position of the sons, Holman J had this to say:
"56. I wish to stress very clearly that the power and duty to make the best interests decision and consequential declarations is vested in the court alone. It is my duty to take responsibility for my decision, and although it is a heavy burden I, and I alone, do so. But in reaching that decision I have paid considerable regard to the position and views of the three sons, which I respect. They are not doctors but they know their mother well and each of them would be heavily involved during her recovery and convalescence. I do not make the declarations because they ask me to do so; but I might well have refused to make the declarations if they had raised any reasoned opposition to them.
57. Circumstances may change. They may reassess issues, such as the mental state of their mother or her likely post-operative compliance. For that reason, although the operation does not require their consent, there must be a temporary brake upon it if any of them notifies the doctors, making reference to the relevant part of the court order, that he no longer considers that the operation should take place. I stress that all these powers of veto or brakes are temporary, not absolute. They would halt the process but would not preclude further consideration by the court (myself if possible) in the light of the changed circumstances."
Comment: This case could properly stand as a case study of a medical treatment case in the COP, because it shows the careful application of the provisions of the MCA 2005 to the very particular facts before the Court, and, in particular, the close analysis of the evidence of the risks that would present themselves if the operation went ahead. Section 4 does not prescribe an outcome in any given case, but s.4 (and the 'balance sheet' approach) allows the Court to take a structured approach to identifying what outcome can properly be said to be in P's best interests.
That having been said, it would be interesting to learn the basis upon which the NHS Trust had not sought the authorisation of the Court prior to making the abortive attempt to undertake the operation in July 2012. Whilst Holman J made no criticism at all of the Trust in this regard, it would seem from the face of the judgment to have been a case in which the Practice Direction 9E would have mandated an application to be made, not least given the fine balance between the benefits to Mrs K of the operation and the burdens and risks that it was likely to entail.