Hull University Teaching Hospitals NHS Trust v KD (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 02 July 2020 |
| Neutral Citation | [2020] EWCOP 35 |
| Date | 02 July 2020 |
| Docket Number | Case No: 13619286 |
| Court | Court of Protection |
[2020] EWCOP 35
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13619286
Mr Mungo Wenban-Smith (instructed by Hull University Teaching Hospitals NHS Trust) for the Applicant
Ms Nicola Greaney (instructed by the Official Solicitor) for KD
Hearing dates: 2 nd July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered following a remote hearing conducted on a video conferencing platform and was attended by the press. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the names and addresses of the parties and the protected person must not be published. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is an application brought by Hull University Teaching Hospitals NHS Trust (the “Trust”). It concerns KD, a 57 year-old woman who has a longstanding diagnosis of paranoid schizophrenia and is a lifelong heavy smoker, who I am told continues to smoke around 60 cigarettes per day. Her current medication consists of the anti-psychotic Clozapine, Norethisterone and a mood stabiliser, Valproic acid. KD is represented by the Official Solicitor, who has accepted an invitation to act as her litigation friend.
KD has developed right-sided pneumothorax, commonly known as a collapsed lung. Her right lung is described as totally collapsed. KD was scheduled in the operating list of Dr Ahmed Salah, a consultant cardio-thoracic anaesthetist at the Trust's Castle Hill Hospital (the “Hospital”) in Hull since 1992, as an urgent case on Tuesday, 30th June 2020 but this did not proceed because KD objected to the procedure taking place that day. She had arrived on the ward on Sunday 28 th June in anticipation of the surgery, having previously been an inpatient on the respiratory unit at the Hull Royal Infirmary for just under two weeks.
It is proposed that KD undergo a surgical intervention. It is described as right-sided video-assisted thorascopic bullectomy and pleurodesis, a form of what is commonly known as “keyhole” surgery, the details of which I shall set out below. The need for this arises in consequence of what is in fact a second pneumothorax. Mr Vasileios Tentzeris, her consultant thoracic surgeon, has explained to me in simple language, that when the lung collapses because there is a hole in it, the lung, which he described as being like a balloon in a barrel, deflates, the air is compressed and it has to be reinflated. Mr Tentzeris was contacted by the respiratory consultant at the Royal Infirmary on 28 th June and then met KD once she had arrived at the Hospital on 29 th June and on another three occasions on 30 th June.
The legal framework
Capacity
There is a presumption of capacity: s.1(2) Mental Capacity Act 2005 (“MCA 2005”). The burden of proof lies with any party asserting a lack of capacity and must be established on the balance of probabilities: s.2(4) MCA 2005.
The principles of the MCA provide that, in addition to the presumption of capacity,
i. a person (“P”) is not to be treated as unable to make a decision unless all practicable steps have been taken to assist him or her to do so without success (s.1(3) MCA 2005);
ii. P is not to be treated as unable to make a decision merely because he makes an unwise decision (s.1(4) MCA 2005);
iii. any act done or decision made on P's behalf must be made in his best interests (s.1(5) MCA 2005);
iv. regard must be had to the principle of least restriction (s.1(6) MCA 2005).
P lacks capacity in relation to a matter if, at the material time, he or she is unable to make a decision for himself or herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain (s.2(1) MCA 2005). This is the “single test” for capacity albeit that it falls to be interpreted by applying the more detailed description given around it in sections 2 and 3 MCA 2005 ( PC v NC and City of York Council [2013] Civ 478 at [56]). The single test consists of three elements:
i. the functional test: is the personal unable to make a decision for him or herself?
ii. the diagnostic test: is there an impairment of or disturbance in the functioning of, the mind or brain?
iii. is there a “causative nexus” between the mental impairment and the inability to decide?
The functional test, pursuant to s.3(1) MCA 2005 provides that P is unable to make a decision for himself if he is unable (at the material time (s.2(1)) to a) understand the information relevant to the decision; b) retain that information; c) use or weigh that information as part of the process of making the decision; d) communicate his decision by any means. The information relevant to the decision includes the reasonably foreseeable consequence of deciding one way or another or failing to make a decision (s.3(4) MCA 2005).
Best Interests
Any act done or any decision made on P's behalf must be done or made in P's best interests (s.1(5) MCA 2005). Best interests are not defined under the MCA 2005 but are to be ascertained by reference to the s.4 checklist. A determination of best interests must consider all relevant circumstances which include (s.4(11)) those of which the person making the determination is aware and those which it would be reasonable to regard as relevant. In particular, pursuant to s.4(2) MCA 2005, a determination must take the following steps:
i. consider whether it is likely that the person will at some time have capacity in relation to the matter in question, (s.4(3)(a)
ii. if it appears likely that he will, when that is likely to be (s.4(3)(b) MCA 2005);
iii. encourage P to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him (s.4(4) MCA 2005);
iv. consider, so far as is reasonably ascertainable, the person's past and present wishes and feelings, the beliefs and values that would be likely to influence his decision if he had capacity and the other factors he would be likely to consider if he were able to do so (s.4(6)(a)-(c) MCA 2005);
v. take into account, if it is practicable and appropriate to consult them, anyone named as someone to be consulted, (s.4(7)(a)), anyone engaged in caring for the person or interested in his welfare (s.4(7)(b) MCA 2005).
Best interests decision-making is not a matter of substituted judgment but requires decision-makers to:
“ look at welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.” ( Aintree University Hospitals v James [2014] AC 591 [39])”
Analysis
Before I turn to the medical plans for KD, I must first address the issue of her capacity in accordance with the test set out above. It is not lightly assumed she lacks capacity merely because she has a longstanding diagnosis of paranoid schizophrenia. Even with this condition, it may be possible to understand, retain and weigh the issues that arise. However, KD suffers from active persecutory delusions which impair her ability to understand and take decisions. She has had the benefit of a community psychiatrist, Dr Graham Harkness, for some 10 years with whom she has an easy and comfortable professional relationship. Dr Harkness has concluded that KD does not have the capacity properly to evaluate and weigh the medical issues around the proposed treatment in this case. The primary impediment, he considers, is KD's unspecified anxiety which involves a generalised belief that rather than being there to help her, as they self-evidently are, the doctors may be motivated by some more hostile animus.
It is important to emphasise that the treatment which is...
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