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A NHS TRUST v K (2012) EWHC 2922 (COP)
This was an application by a NHS Trust for an order permitting doctors to perform major surgery, a hysterectomy, on a patient, Mrs K, who had refused to consent to the surgery but who lacked legal capacity to decide whether or not to consent to it. The application was made under the Mental Capacity Act 2005. Mrs K was 61 years old at the time of the application. She was divorced with three adult sons. For about 40 years she had suffered from a psychotic disorder and a form of chronic schizophrenia. Intermittently, she required in-patient treatment for that condition. She suffered from delusions. In particular, she was convinced she was aged about 20 and had a relationship with a young man.
Mrs K was diagnosed as suffering from endometrial cancer. She was referred to a Consultant Gynaecological Oncologist, Mr J. Various tests were carried out which confirmed the diagnosis of Grade 2 endometrial cancer. CT scans performed in March and September 2012 tended to suggest that the cancer had not significantly spread between those times. The prognosis, if surgery in the form of a hysterectomy was performed, was good. There was a high prospect of cure.
Mrs K was admitted to hospital for surgery. But she became very agitated and refused to consent. She was adamant that she did not have cancer and that her relationship with her boyfriend would be damaged if she had a hysterectomy. The surgery was abandoned and the hospital made the application to the Court of Protection.
The Official Solicitor was appointed to represent Mrs K. Another NHS Trust (responsible for her psychiatric treatment) was made second respondent. At an early stage the court made a declaration to the effect that Mrs K lacked capacity. Reporting restrictions (preventing identification of Mrs K, the hospitals involved and the treating doctors) were imposed. Independent experts in gynaecology (Mr Robert Anderson) and intensive care/anaesthesia (Dr Dominic Bell) were appointed and instructed to report.
The court heard evidence from the treating doctors (Mr J, the Consultant anaesthetist, the Consultant intensivist and two psychiatrists). It also heard evidence from another psychiatrist (Professor W) who had not yet treated Mrs K but who would be responsible for her psychiatric treatment in the hospital in which the operation would take place. To varying degrees all of those doctors were content that the surgery should take place although Professor W had some concerns about Mrs K’s possible psychiatric reaction to it.
Mr Anderson, the independent gynaecologist, gave evidence. He was of the view that the surgery should go ahead if a proper peri-operative treatment plan were to be put in place. He, and the treating surgeon, anaesthetist and intensivist agreed that the risks of peri-operative mortality were high. Not only were there psychiatric risks (some thought her psychiatric condition might lead her to refuse to comply with vital post-operative treatment), but there were also risks due to her “super obesity”, her insulin dependant diabetes and her asthma. Mr Anderson put the risk of mortality at about 5%. The treating doctors did not give any percentages but did not seriously quarrel with Mr Anderson’s estimate.
Dr Bell, the independent expert in intensive care and anaesthesia, gave startlingly different evidence on the risks of mortality. At one stage he appeared to be of the opinion that Mrs K was more likely than not to die in the peri-operative period. Following clarification of some points by the other doctors, his estimate of the risk of death came down to just below 50%. He did not think the surgery should take place. Mrs K’s sons, who were in court throughout, wanted their mother to have the surgery, though they were clearly shaken by Dr Bell’s evidence.
The Official Solicitor, who was also present throughout, did not form a view as to what he thought should happen until he had heard all the evidence. At that stage he submitted that the surgery should not proceed. He thought the risks of mortality outweighed the benefits of surgery. The applicant NHS Trust remained of the view that the surgery was in Mrs K’s best interests. The second respondent NHS Trust (responsible for psychiatric care) remained neutral.
Mr Justice Holman had to decide first whether the surgery was in Mrs K’s best interests and then, if he concluded it was, what steps the doctors should be permitted to take to ensure she actually had the surgery. After a careful analysis of all the evidence, he came to the conclusion that the benefits of surgery outweighed the risks. The prognosis for the cancer, if surgery went ahead, was thought to be remarkably good. If it did not go ahead then, at some time, Mrs K would almost inevitably die from the cancer, and her final months would be exceptionally uncomfortable. His assessment was that the level of risk of mortality during the peri-operative period was probably of the magnitude suggested by Mr Anderson (around 5%). He acknowledged that that was a very high risk, but it was plainly not nearly as high as Dr Bell had suggested. The judge concluded that surgery would be in Mrs K’s best interests.
Although it had originally been suggested that it may be necessary to use physical force to ensure Mrs K had the operation, all were agreed, by the conclusion of the evidence, that that would not, in this case, be appropriate. But something would have to be done to ensure she had the surgery. Her sons suggested that it would be appropriate to give her sedation before the doctors told her what was proposed. Holman J agreed. He made a declaration permitting that to be done (under the supervision of an anaesthetist).
The judge also, unusually, gave various people (all the treating doctors and the sons) what he called a power of veto. If any one or more of them objected to the surgery before it took place, it was not to proceed and the matter was to be relisted before the judge.
The case is of interest because, unlike most such cases, it concerned a patient who not only had no capacity to consent, but also positively refused to consent. It also demonstrates the enormous burdens that can be placed on judges of the Court of Protection in having to make agonising decisions on matters, quite literally, of life and death.
A pleasing footnote can be added to this case. Following judgment, the surgery did take place and was successful. Mrs K was co-operative. She spent one day in intensive care, was placed back on the ward and then discharged home after a further four days. She was reported to be doing well at home.