Cambridge University Hospitals Nhs Foundation Trust v Bf (by Her Litigation Friend, The Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 18 May 2016 |
| Neutral Citation | [2016] EWCOP 26 |
| Docket Number | Case No: 12864308 |
| Court | Court of Protection |
| Date | 18 May 2016 |
[2016] EWCOP 26
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice MacDonald
Case No: 12864308
Mr Vikram Sachdeva QC (instructed by Kennedys Law LLP) for the Applicant
Mr Conrad Hallin (instructed by the Official Solicitor) for the Respondent
Hearing date: 4 May 2016
INTRODUCTION
It is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo, and a graver step still where to make such a declaration will, whatever other benefits may attend that treatment, result in the patient being deprived permanently of her ability to have children. Parliament has conferred upon the court jurisdiction to make a declaration of such gravity only where it is satisfied that the patient lacks the capacity to decide whether to undergo the treatment in question and where it is satisfied that such treatment is in that patient's best interests.
In this case I am asked to decide two questions. First, whether BF, a 36 year old lady with a diagnosis of paranoid schizophrenia, has the capacity to consent to or to refuse medical treatment for ovarian cancer, specifically a total abdominal hysterectomy (removal of the uterus and cervix) with bilateral salpingo-oopherectomy and omentectomy (removal of the ovaries and fallopian tubes), with a possible bowel resection and colostomy, general anaesthetic, sedation and ancillary treatment? Second, if BF does not have capacity in this regard, is it in her best interests to undergo such medical intervention such that the court should so declare?
On 4 May 2016 I heard submissions in this matter from Mr Vikram Sachdeva QC on behalf of the Trust and from Mr Conrad Hallin on behalf of the Official Solicitor representing BF's interests. I considered evidence from Mr L, Consultant and Lead Gynaecological Oncologist, Dr B, Consultant Psychiatrist, Dr P, Consultant Anaesthetist and Ms Amanda Mead, Solicitor on behalf of the Trust.
Having considered the evidence before the court and having heard the submissions of counsel I decided that BF lacked capacity to make the decisions in issue at this time. I further concluded that it was in her best interests to undergo the medical treatment the Trust sought to give her. I now set out my reasons for reaching those conclusions.
The hearing on 4 May 2016 was held in open court. At the hearing I considered an application by the Trust for a reporting restriction order. I granted a reporting restriction order which prohibited the naming of BF, any doctor, nurse or other professional caring for her, any person who provided written or oral evidence in the proceedings other than an independent expert witness, the institution in which BF is treated or cared for and, but only for the duration of BF's admission for surgery, the identity of the NHS Trust. My reasons for granting that order and for stipulating the terms it contains are set out in the ex tempore judgment I gave on 4 May 2016.
ESSENTIAL BACKGROUND
BF is 36 years old. In 2006 she was diagnosed with paranoid schizophrenia consequent upon her longstanding abuse of stimulant and hallucinogenic drugs. BF's mental illness is described as severe and its course has been characterised by relapsing psychotic episodes. In June 2013 Dr B became BF's treating psychiatrist and, on 15 August 2014, her Responsible Clinician under a Community Treatment Order made pursuant to the Mental Health Act 1983 s. 17. BF is treated with regular depot injections of the anti-psychotic drug Clopixol.
At the present time BF is detained in a mental health unit pursuant to the Mental Health Act 1983 s. 3 in circumstances I shall detail below.
BF is also at present under the care of Mr L, Consultant and Lead Gynaecologist Oncologist. On 17 February 2016 BF was referred to the NHS Trust with a history of bloating and abdominal distention that had worsened over a period of months. On examination extensive ascites (abnormal accumulation of fluid in the peritoneal cavity) were noted. A CT scan on 24 February 2016 revealed a mass. The results of the CT scan were discussed at a Multi-Disciplinary Team meeting on 1 March 2016 and the scan was assessed as showing the appearance of stage IIIB ovarian cancer. In addition, upon blood tests being undertaken BF showed an elevated CA125 reading of 114, consistent with an ovarian tumour.
On 2 March 2016 BF was seen by Mr L in clinic. Mr L explained to BF and her parents that he was concerned BF had ovarian cancer and that she needed surgery. Specifically, BF was advised by Mr L that the surgery that was planned would involve a total abdominal hysterectomy, which would mean the loss of her fertility. BF was also advised of the possibility that, following surgery, the histopathology results could show that she mass was not, in fact, cancerous.
In response to being told of her diagnosis by Mr L and of the proposed treatment, BF stated that she wanted to get pregnant but did not at present have a partner (BF is at present seeking a divorce from her current husband). Mr L considered that BF appeared to understand the information given to her at the time she received it on 2 March 2016. On 31 March 2016 BF signed a consent form for " Primary surgery for gynaecological cancer" in respect of the surgery proposed by the Trust.
On 31 March 2016 BF was admitted to theatre for surgery. BF was seen by Dr P, consultant anaesthetist in preparation for the administration of the anaesthetic. On that occasion, in part due to BF's weight (which presently stands at 119Kg), Dr P had difficulty gaining venous access. The associated stress attendant on these difficulties caused BF to suffer a psychotic episode during which BF refused surgery, stating that her distended abdomen was not due to a tumour but rather to " bad air". Notwithstanding the intercession of BF's parents, BF could not be persuaded to undergo surgery, continued to decline it and the surgery was cancelled.
An assessment of BF's capacity undertaken on 10 April 2016 by her psychiatric nurse indicated that BF once again had capacity to make decisions regarding her medical treatment. In respect of the surgery BF expressed her wish that she be first on the surgery list on the day the surgery was to be performed, that her parents stay with her until she is under anaesthetic, that her parents be present when she wakes up and that there is a good plan in place to find a vein before an attempt is made to gain venous access. Accordingly, a plan was made for the surgery to be undertaken on 5 May 2016. However, on 15 April 2016 the Trust was contacted by BF's Approved Mental Health Practitioner who once again raised concerns about whether BF had capacity to take decisions regarding her medical treatment (although he considered her to have capacity on that day). Within this context, a multidisciplinary meeting was arranged for 27 April 2016.
On that date BF was seen by Mr L, Dr P, Dr B and her Approved Mental Health Practitioner. In light of her presentation at this meeting (which I deal with in greater detail below) Mr L completed a Capacity Assessment and concluded that BF did not have the capacity to give her consent to the surgery. Dr B undertook a home visit to BF the following day on 28 April 2016. As a result of her assessment of BF on that day, Dr B recalled BF to hospital in order to further assess and treat her psychiatric condition.
On 29 April 2016 the Trust issued its application. The matter came before Moylan J on 29 April for directions. Moylan J granted the Trust permission to bring the proceedings, joined BF as a party and appointed the Official Solicitor to act as her litigation friend and listed the matter before at risk before me to determine whether BF has capacity to decide whether to proceed with the surgery and, if she lacks capacity, whether it is in her best interests to undergo such treatment.
On 3 May 2016 a representative of the Official Solicitor spoke to BF's father. He confirmed that he did not wish to make representations to the court but confirmed that he wished the court to know that he wanted his daughter to undergo the proposed surgery and trusted the professionals to do what was best for BF. BF's father said that his daughter was "hearing voices" and that he did not think that she could make the decision whether to have the surgery. Mr L describes the parents as being "emphatically supportive" of the medical team's decision to recommend surgery. In light of her current florid psychosis the Official Solicitor did not consider it appropriate for his representative to see and speak to BF following Dr B's visit on 28 April 2016.
The Trust now seeks the following declarations in respect of BF under the Mental Capacity Act 2005:
i) BF lacks the capacity to consent 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;
ii) 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.
THE LAW
Pursuant to the Mental Capacity Act 2005 s 15(1) the court may make declarations as to whether a person has or lacks capacity to make a decision specified in the declaration, may make declarations as to whether a person has or lacks capacity to make decisions on such matters as are described in the declaration and may make declarations as to the lawfulness of any act done, or yet to be done in relation to that...
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