Mental Capacity Case

Re PG

Judge
Cobb J

Summary 

In this case, Cobb J was asked to determine the capacity and best interests of a woman as regards investigation and treatment of potentially serious conditions including different forms of cancer.  The woman had a long-standing mental health condition, which was described as treatment-resistant.  She may have been the subject of a serious sexual assault and /or rape, which professionals considered might account in part to her firm resistance to even mildly invasive obstetric and/or gynaecological examination.  She was detained under the MHA 1983, but was on s.17 leave to a supported living placement which was described as being successful. Cobb J describes how in the context of unusual bleeding and other gynaecological symptoms:

[t]he clinically instinctive wish to investigate that pathology was met with a strong body of psychiatric opinion by those who know PG well that any investigation into the cause of the presenting symptoms was likely to cause PG significant and enduring distress, and substantially impact on her fragile mental health.

However, and:

54. Regrettably, and for reasons which have not been entirely adequately explained, there was a significant delay in the issuing of these proceedings from the moment when investigations into possible cancer were first flagged in August 2023; this has been, at least potentially, to PG's detriment.  

55. It may well be that the delay in the making of the application has arisen from a lack of communication between the two Applicants; this was hinted at by Dr. H.  It may be that it flowed from an understandable concern by the Applicants that it would be inappropriate to trouble the court with an inchoate application in the absence of an agreed "fully-worked up" care plan, in respect of the investigations.  If so, I would wish to encourage these Applicants and/or any other applicant in such circumstances with such a case, to be less concerned about ensuring that every 'i' is dotted and every 't' crossed before making the application where speed of decision-making may be of the essence: perfect in this instance may well be the enemy of the good.  Once it became apparent that NHS Guidance regarding the investigation and/or treatment of PG's condition could not be complied with timeously, and/or where it was clear that PG's treating/receiving clinicians could not agree upon a care plan to facilitate the investigations and/or treatment, the application could or should have been issued.  The Court could then have ensured with the assistance of counsel and solicitors that evidence was filed from the necessary factual and expert witnesses to enable the detail of the care plan to be completed, and a decision to be reached promptly in respect of PG's best interests.

When the application was brought, there was ample evidence that PG lacked the capacity either to conduct the litigation or to consent to medical treatment, in particular to the investigation and treatment of suspected gynaecological malignancy.  The more difficult question was as to her best interests. Cobb J reminded himself of Baroness Hale’s comments in Aintree as to the proper approach to best interests, in particular that:

37. It is a ""best interests" rather than a "substituted judgment" test, but one which accepts that the preferences of the person concerned are an important component in deciding where his best interests lie..." (Baroness Hale in Aintree (above) at [24]).

And:

39. In this regard, it is appropriate that I should have regard to the quality of life which this patient (PG) would regard as worthwhile; it is clear from the Aintree case that the purpose of the best interests' test is to consider matters from the patient's point of view. As Baroness Hale went on to say in that case, it is not that the wishes of the patient will prevail (assuming that it is possible to determine what those views were and/or are), but insofar as it is possible to ascertain the patient's wishes, her beliefs and values, they should be taken into account in the best interests evaluation (see Aintree at [45]).

Cobb J then asked himself a series of questions: (1) as to the optimal outcome; (2) what PG would want; (3) could she be assisted to cope with investigations and /or treatment; (4) is it in her best interests to be subject to investigation if she never be compliant with treatment; (5) to what extent, if at all, would the force, or restraint, or the administration of sedation, be in her best interests if this were to achieve investigation and /or treatment; (6) is it in her best interests to do nothing; and (7) what as to the wider picture?  On the facts of the case before him, he concluded (and – by the end of the hearing – reflecting the agreed position of the parties) that:

59 […]

iii)   It is not in PG's best interests to undergo any of the following investigations of her gynaecological symptoms, examination under general anaesthetic and biopsy, local MRI, CT scan of her whole body;

iv) It is not in PG's best interests to undergo the following treatment of her gynaecological symptoms, either by way of surgery, radiotherapy, or chemotherapy;

v) It is in PG's best interests to receive such palliative care as her clinicians considered to be in her best interests at the time.

60. Based on Mr N's evidence, it appears that PG's demise could be imminent, that is to say, within weeks rather than months. The health and social care professionals looking after her, need to know how to manage all aspects of her demise, both physical and psychological. I shall therefore list this application for further hearing in a few weeks' time to consider the revised care plan which will have as its focus the palliative care arrangements for PG.

Separately, Cobb J also made a community deprivation of liberty order “so that PG’s section 3 MHA 1983 order can be discharged, so that her bed in hospital can be released, and her placement can be maintained at York House” (paragraph 61). In light of the delay noted above, Cobb J concluded his judgment by emphasising that:

57. The case nonetheless causes me to emphasise for future reference that where cancer is a suspected pathology in respect of a person who lacks or may lack capacity to make treatment decisions, the Hospital Trusts should not hesitate one moment before bringing the matter before the court.  I hardly need to underline here that cancer which is diagnosed at an early stage, when it is not too large and has not spread, is more likely to be treated successfully; where investigation and/or treatment is in respect of someone who lacks capacity like PG, court approval should be urgently sought.

In the instant case, however, Cobb J acknowledged that:

even if the case had been heard last year, PG's resistance to investigation and/or treatment, and the long-term outcome for her, would not have been different, or materially so.  

Comment

Procedurally, Cobb J was at pains to emphasise that the perfect can be the enemy of the good when it comes to making applications to court; that, equally, applies to clinicians asking for help from legal. There is nothing wrong, and indeed often much which is very right, with clinicians getting in touch with Trust legal as soon as it appears that there may be an issue which might require resolution. Of course, however, that depends on (1) recognition that there may be an issue; and (2) Trust legal (or external legal advisers) being available and resourced to be able to assist at speed.

Substantively, it is striking, that Cobb J was at pains to point out that the case, in fact, was much more clear-cut than it might have appeared at first blush. It therefore shows how often clarity in the process of decision-making can help strip away unnecessary complexity. Indeed, the careful set of questions Cobb J that set himself which would be equally relevant for any decision-making taking place outside court within the s.5 (and 6) MCA framework. Asking and answering those questions in a suitably rigorous fashion will, in many cases mean that, in fact, judicial endorsement of either treatment or non-treatment is required, given Lady Black’s clear statement that “if the provisions of the MCA 2005 are followed and the relevant guidance observed, and if there is agreement upon what is in the best interests of the patient, the patient may be treated in accordance with that agreement without application to the court” (NHS Trust v Y at paragraph 126).