CD, Re

The question I have to decide is whether it is in the best interests of a 43 year old woman, CD, who suffers from paranoid schizophrenia, to have a total abdominal hysterectomy in circumstances where she lacks capacity to make that decision for herself. The object of surgery would be to remove two very large ovarian growths or masses. All the medical experts and all the parties, including the Official Solicitor who represents CD, are agreed that it would be in her interests to have this operation. CD herself, who I met at the mental hospital where she is held, strongly expressed the wish to me to have the operation.

In setting out the background and in summarising the evidence I have drawn heavily on the position statement prepared by Mr Matthewson, which is comprehensive and for which I am very grateful.

CD is the fifth eldest of 10 children. She had a chaotic childhood dominated by an alcoholic and violent father. She has two daughters, both of whom were taken into care in the 1990s and were later adopted in 1998. CD has no contact with her children. CD’s mother, who lives in Birmingham and visits CD regularly, has been notified of this application. CD also has two sisters who visit her occasionally.

CD has an established diagnosis of Schizoaffective Disorder (first diagnosed in 1997). Her illness has had a remitting and relapsing course and her mental capacity has fluctuated in the past.

CD has a long history of aggression and violence. The first signs of her mental health problems appeared in 1991. In 1996 CD was noted to be hearing voices. Further instances of violence followed and, in 1996, she was diagnosed as suffering from a personality disorder, psychotic illness and acute confusional states whilst serving a sentence of imprisonment for crimes of violence.

In 1997 CD was diagnosed as suffering from schizophrenia. Conventional medication was of little help so Clozapine was tried and CD responded well. Her hallucinations and delusions ceased although she was noted to have mild thought disorder.

Between 1999 and 2009 CD was detained in various institutions. Her behaviour was often hostile, aggressive and violent. She expressed deluded (often bizarre) thoughts and experienced hallucinations. She developed a tendency to secrete objects to use as weapons on her person and in her rooms and had a history of causing injury to members of staff.

Between 2009 and 2014 CD was treated in the community. She responded well to Clozapine but demonstrated little insight into her illness or the need for medication. In June 2014 CD displayed evidence of extreme psychosis and was eventually detained under section 3 of the Mental Health Act 1983 (“MHA”). Her behaviour since that time has been bizarre and violent. She has displayed extreme violence to members of staff and has had to be controlled with a taser. She has been floridly psychotic, has smeared faeces on her wall, flooded her room, spat at staff and has expressed thoughts of stabbing people and slitting their throats.

In May 2013 CD stabbed herself in the stomach and, whilst she was being treated for that, an ultrasound scan revealed bilateral pelvic masses. In June 2013 the right mass was measured as being 16.8 x 8.1 x 9.4cm and the left mass was 7.4 x 4.4 x 4.4cm. The initial diagnosis of uterine fibroids but the diagnosis was later revised to ovarian fibrothecomas (i.e. muscular tumours, usually benign). Surgery was discussed with CD in July 2013 but she declined.

An assessment of CD’s capacity was made by her treating Consultant Psychiatrist Dr FH on 20 March 2015. Since mid 2014, CD has expressed delusional beliefs about the cause of the masses and delusional beliefs as to the consequences of surgery. She understood that she had a mass in her abdomen but she has variously described it as being a baby; that it has been caused by Clozapine; that the mass can disappear at times, that it is a “spiritual lump”; that it has been caused by an injection; and that there are spirits in her abdomen that will be crushed if the mass grows further.

In her addendum witness statement dated 15 July 2015 Dr FH explains that CD “remains chronically psychotic and describes ongoing delusional beliefs in relation to the mass” which she summarises.

The relevant law is set out in sections 1 to 3 of the Mental Capacity Act 2005 (“MCA”). CD will lack capacity in relation to the treatment of her ovarian masses if she is unable to make a decision for herself in relation to that matter because of an impairment of, or a disturbance (which may be permanent or temporary) in the functioning of her mind or brain. The issue of capacity is to be decided on the balance of probabilities.

In my judgment CD manifestly lacks capacity to make a decision about the treatment of her ovarian masses. CD’s diagnosis of paranoid schizophrenia and its effect on her thought processes constitutes an impairment of, or a disturbance in the functioning of, the mind or brain for the purposes of section 2 MCA. The evidence shows that CD’s delusional beliefs impair her ability to weigh up the benefits and disadvantages of treatment and to use that information to arrive at a decision for the purposes of section 3 MCA. Therefore I have to decide the issue by reference to the criterion of her best interests as explicated in section 4 MCA.

In September 2014 CD complained that the lump in her abdomen was getting bigger. An MRI scan confirmed this to be the case. Whilst ovarian fibrothecomas can be asymptomatic and left untreated, the large and increasing size of the masses in CD’s case were thought likely to cause pain, pressure on the back and pressure on the kidneys. A multidisciplinary clinical meeting was held on 19 October 2014 when it was decided that the most appropriate treatment was a total abdominal hysterectomy and bilateral salpingo-oophorectomies (i.e. removal of the uterus, cervix, fallopian tubes and ovaries). This was considered the best course because (a) the tumours had grown significantly, and (b) malignancy could not be ruled out. Ms PA, a consultant obstetrician and gynaecologist discussed surgery with CD and, on this occasion, she said that she was keen to have surgery as quickly as possible. CD appeared to understand that surgery would result in the removal of her womb.

In November 2014 a CT scan revealed that the masses had grown: the right one had increased to 22 x 15 x 12.6 cm and the left one had increased to 6.9 x 5.2 cm. Ms PA explained that the masses were equivalent in size to a 32 week pregnancy. Tests showed that the ovarian tumour marker was slightly raised which indicated that it might be a slow growing malignant tumour. If the mass were left untreated (and turned out to be malignant) there was an obvious risk to life. In the more likely scenario of the mass being benign, it was thought that the masses would gradually interfere with kidney function. An MRI scan in 2013 suggested that the masses were putting pressure on the left ureter. There was also fullness of the right kidney which can be an indicator of hydronephrosis (swelling of the kidney usually caused by obstruction) or hydroureters (distention of the ureters due to blockage). If left untreated these conditions can lead to renal damage and failure. Ms PA did not feel that simply doing nothing was a sensible course of action because the masses were increasing in size.

The original intention was that surgery would be carried out by Ms PA under general anaesthetic with spinal diamorphine. A large incision would be made down the middle of the abdomen. The uterus, fallopian tubes, both ovaries and the masses would be surgically removed. Biopsies would be taken from the omentum and peritoneum. The operation would take about two hours. The wound would be closed and clips applied. In CD’s case, bandages would be applied to stop her from interfering with the wound. She would need to stay in hospital for about four or five days. A urinary catheter would need to be inserted during surgery and would need to stay in place for about 24 hours. A pelvic drain might also be required for a similar period.

This application was issued on 25 March 2015. Ms PA wrote to the Hospital on 10 June 2015 making a formal referral so that CD’s operation could be performed there if the Court ordered it to be in CD’s best interests.

A consultant nephrologist Dr SB, was asked to give his views as to the risks of leaving the masses untreated. In his first report, received on 4 June 2015, he noted that the masses were increasing in size and, in particular, that the right sided mass had increased by 30% in diameter. He considered that the presence of hydronephrosis (i.e. distention of the urinary draining system) could indicate ureteric obstruction, but he felt that the obstruction was only partial in CD’s case at that stage. The risks of ureteric obstruction are damage to the kidney consequent upon increased pressure within the kidney. Complete obstruction would lead to complete loss of kidney function which is irreversible. A further risk was that of infection consequent on urinary stasis behind the obstruction. Dr SB said that the time frame for permanent loss of kidney function was difficult to predict but that “…complete kidney failure could occur quite quickly”. If renal failure occurred then CD would require treatment with dialysis and long-term follow-up. Dr SB said that the mild hydronephrosis is likely to require a stent to protect the kidney. If that were not possible, a nephrostomy would need to be performed (i.e. passing a needle through the back and into the kidney, threading in a stent) with a stent requiring placement every six to 12 months.

In an addendum to his report dated 9 June 2015 Dr SB considered measurements made in relation to kidney function. He said: “These show normal renal function with no change over that time period. Although this does not definitively rule out L sided partial obstruction, it is reassuring”.

Dr SB provided answers to a series of questions on 29 July 2015 and made a further witness statement in which he explains that the risk of obstruction remain “hypothetical” if nothing is done to remove the masses but that, if they continue to grow, kidney obstruction would lead to increasing damage, possible complete loss of kidney function and a heightened risk of urinary tract infection. He says: “At this time it is not possible to meaningfully predict at what point these complications will manifest or become irreversible” but that not removing the masses will probably lead to these complications.

A joint nephrology/psychiatric report was prepared by Dr FH and Dr SB. Dr FH is of the view that CD will comply with kidney function monitoring to an extent (only blood tests). She does not think CD will comply with ultrasound monitoring. Dr SB explains that blood testing is useful but would only detect significant obstruction and at a later stage than ultrasound imaging would. Earlier detection would lower the risks of surgery because it would minimise the risk of pre-operative renal injury. For example, a degree of damage might occur to one kidney before there was any marked change in the blood tests. Whilst having only one properly functioning kidney does not constitute an immediate threat to life, there is a risk of renal damage caused by surgery to remove the ovarian masses. The risks of operating on a patient with two properly functioning kidneys are therefore lower. Dr SB’s view is that, if surgery is inevitable at some point anyway, then it is better to do it sooner rather than later in view of CD’s partial compliance with monitoring. Dr FH explains that, if CD developed bilateral kidney failure, she would not be able to comply with life-sustaining treatment (eg, dialysis).

Three independent experts have been instructed by the Official Solicitor and provided reports (Footnote: ¹):

Mr Murdoch says that, although the ovarian tumours might be malignant, they are more likely to be benign. He thinks that the estimated risk of malignancy (low grade with low propensity for metastasis) at 20 – 25% is reasonable. With the evidence to hand at the date of his first report (30 September 2015), Mr Murdoch expressed the view that the tumours would continue to grow and cause serious complications within two to five years. However, Mr Murdoch was later sent a report of a CT scan dated 5 October 2015 (the scan was performed on 30 September 2015). These indicated a much slower rate of growth, possibly because the tumours were outgrowing their blood supply and/or because previous measurements had been inaccurate. This “extends the potential interval before severe compromise of the patient occurs” and Mr Murdoch now estimates that CD will “run into trouble” in about six to seven years.

It was explained to me during the hearing that the reason why biopsies had not been performed, which would confirm one way or the other whether the growth was cancerous, was because of the risk of disturbing the masses with dire results.

Mr Murdoch sets out the treatment options and identifies the advantages and disadvantages of each. He draws attention to the fact that, as a gynaecological cancer surgeon, his experience of seeing neglected cases of curable cancer means that he is generally in favour of early treatment for suspected cases. However, he thinks it is inevitable that without surgery that CD will die. It is assumed that, in the light of his revised opinion as to rate of growth this will be in six to seven years when CD is aged 49 – 50. In the meantime CD’s condition will only deteriorate over time thereby increasing the risks of surgery. On that basis, Mr Murdoch thinks that it is in CD’s best interests to have surgery “soon”.

Dr Newstead states that the most recent scan does not show any interference with CD’s ureters and that the tumours do not present a risk to her kidneys at the moment. If the masses continue to grow, Dr Newstead sets out the risks to CD’s health (distension, urinary frequency, bowel function disturbance, decreased exercise tolerance, leg swelling and DVT). He says there is a future risk of obstruction of one ureter which would not result in renal failure. However, Dr Newstead thinks that: “The longer surgery is delayed the larger the masses will grow, the more extensive the surgery will be and the longer the patient is exposed to the risk of complications…”. If surgery is to take place, Dr Newstead makes a number of recommendations as to the planning and recovery stages.

Dr Bell concludes that CD would benefit from early elective surgery. The surgery itself is likely to be “the most predictable and controllable component of the patient pathway”. He identifies the post-operative period as the most challenging aspect but that there are a number of practical steps that could be taken which, with precise and detailed planning, will reduce these risks to acceptable levels.

In his exceptionally eloquent, moving and lucid judgment in Wye Valley NHS Trust v B [2015] EWCOP 60 Mr Justice Jackson explains just how important the wishes and feelings of an incapacitated person can be. In that case Mr B's wishes were given effect and he was allowed to die rather than to undergo a life-saving foot amputation. But it is vital that wishes and feelings are strictly confined to the best interests analysis and do not act subtly to undermine a capacity assessment. Where, as here, there is no doubt about incapacity then the wishes and feelings of the protected person cannot alter that fact even if they happen to align exactly with a rational, "capacitous", decision. CD cannot make such a decision. It has to be made for her. In reaching that decision there must be an objective analysis of what is best for her; and in this regard what she wants is very important but by no means decisive.

Dr FH says that CD has only ever expressed the view that she would like to have surgery to remove the masses. Against this, CD refused to attend a pre-operative assessment on 14 April 2015 (although she subsequently agreed to attend). In addition, CD has stated that she will attack any staff who try to restrain her. It is not clear whether this indicates a reluctance to have surgery (or simply a desire not to be restrained). Dr FH says that there is “emotional distress associated with the mass”, and this is understood to mean that CD is troubled by the continued presence of the ovarian masses.

More recently, CD’s Independent Mental Capacity Advocate met her on 24 September 2015 and 1 October 2015. CD said that she wanted to have the operation, stating that "the lump’s getting bigger and I don’t know what might happen. I need the operation." At the second meeting CD gave a mixture of apparently logical reasons why she wanted surgery as soon as possible: she said that it was sore, that it interfered with her breathing and that she would feel “a million times better”. CD appeared to understand that she would be having a hysterectomy and broadly what that involved (“ovaries and tubes removed”). CD also expressed some obviously delusional reasons why she wanted to have surgery.

I took the view that it would be right if I were to meet CD face to face and I did so at the mental hospital on the first day of the hearing. It was an enlightening experience and one which I would recommend to any judge hearing a similar case. Mr Justice Jackson met Mr B and it is obvious from his judgment that the encounter was critically valuable. The reason it was enlightening for me was that the person I met was different in many respects to the person described in the papers. CD was engaging and polite. She was articulate. She was amusing. She listened carefully to questions and answered them equally carefully. True, there were comments that suggested powerful delusional forces; and Dr FH explained that she was heavily medicated. But even so, the person I met was a world away from the violent sociopath described in the papers.

Almost the first thing that CD said to me was that the only thing she wanted was the operation. She knew the masses were bad for her. She was worried about what would happen is she kept the masses. She did not know what would happen if they became bigger. She knew that Dr FH had told her mother that if the masses remained inside her then she might drop dead.

CD understood the concept of a 25% chance of cancer. We discussed this by imagining four playing cards placed face down one of which – the Queen of Spades – was cancer. I explained to CD that even if she did not draw the Queen of Spades the growth could still kill her in six years. CD replied that was why she would like the operation and she wanted me to give permission for her to have the operation.

I explained that the proposed date for the operation was 18 November 2015 which was in nine days’ time. CD would also need a pre-operative assessment before that operation. CD replied that that would be fine. I asked if she understood that the operation would remove her womb. CD replied that that would be fine. She had her daughters and that would be fine. Mr Matthewson asked if she was uncomfortable at all with the mass inside her. CD explained that the masses became bigger at night and that she couldn’t breathe and had trouble breathing at night. She also did not want the operation to interfere with her tattoo on her stomach and she didn’t want any scar to go across it. She understood that the Clinicians would try not to operate over the tattoo if at all possible.

At this point, CD pulled up her top and showed me her stomach. Although I had read that she had the appearance of a heavily pregnant woman I was taken aback at the extent of the swelling.

Dr FH then joined the meeting and explained the details of the operation and the post-operative care, including pain relief. CD replied that she was not worried about the operation; she was a bit scared but understood that the operation must be done.

CD's final comment was that that she did not want the operation to be cancelled at all.

In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated "even if Cheshire West is wrong, there is nothing confusing about it". It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court's test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated "anyone who deals with this day by day knows this is confusing". What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that "there is nothing confusing" about the test. I do not accept the criticism that my approach to these cases is "distorted" by my "passionate" and "tenacious" belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court's test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse.

The confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:

"P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes"

In this case CD is P. "Ineligible" means ineligible to be deprived of liberty by the 2005 Act. The "authorised course of action" is the surgical removal of the ovarian masses. The "relevant regime" is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:

"CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes."

Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn't, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).

The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn't (obviously) so she isn't ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).

The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.

I have mentioned that CD falls into the first scenario mentioned in para 38 above. She actively and fervently wishes to undergo the operation to remove the surgical masses. How can it be said that in taking her to the hospital and having the operation performed there under general anaesthetic amounts to her being deprived of her liberty?

She says she will go freely to the hospital but, as explained above, that is not a decision she can make. The decision I make on her behalf is intrinsically coercive even if she is enthusiastically compliant. If she changes her mind she will be taken to the hospital and operated on nonetheless. Although counterintuitive this state of affairs is to my mind clearly within the Supreme Court's test and it is therefore necessary to authorise her deprivation of liberty under Article 5.

By contrast there is no such clarity in relation to the other two scenarios I have mentioned at para 38 above.

My first conclusion, based on the evidence principally of Dr FH, is that CD lacks capacity to conduct these proceedings and to make her own decisions about whether to consent to the medical treatment as set out in the Care Plan, including surgery to remove large ovarian growths.

My second conclusion, based on the totality of the medical evidence, and on CD's wishes and feelings, is that it is in CD's best interests that the operation must take place and an ancillary authorisation of deprivation of liberty must be made. My decision would be the same if CD was resistant; and if she does change her mind the operation must proceed nonetheless, and for this purpose restraints may be used. However, based on my meeting with CD, I am pretty confident that this scenario will not eventuate. The stark medical fact that overarches everything is that if the operation does not happen CD is likely to die within six to seven years, and much sooner if the masses are cancerous.

I attach as an annex the order made by me, duly anonymised.

A HOSPITAL NHS TRUST

CD

A MENTAL HEALTH NHS FOUNDATION TRUST

UPON HEARING counsel for the Applicant, counsel for the First Respondent and solicitor for the Second Respondent

AND UPON the Court noting that CD is presently detained in [a mental hospital] (which is operated by the Second Respondent) pursuant to section 3 of the Mental Health Act 1983

AND UPON considering the evidence and other documents contained in the court bundle prepared and filed by the Applicant

AND UPON Mr Justice Mostyn (in the company of counsel instructed by the Official Solicitor, solicitor instructed by the Second Respondent as note-taker, CD’s treating psychiatrist, a Mental Health advocate and Mental Health Nurse) meeting CD at [the mental hospital] on 9 November 2015 to discuss this matter. At that meeting CD expressed the strong desire to have the proposed surgery to remove her ovarian masses

AND UPON the Court noting that the Second Respondent, by its clinical staff at [the mental hospital], plans to authorise CD’s temporary absence from that hospital pursuant to section 17 of the Mental Health Act 1983, for the purpose of CD attending at [the hospital] (which is operated by the Applicant)

AND UPON the Court further noting that the Applicant, by its staff at [the hospital], will take responsibility for CD's treatment as set out in the care plan dated 5 November 2015 contained in section F of the court bundle (“the Care Plan”)

AND UPON the court concluding that, in the event that the medical treatment identified in the Care Plan were to be undertaken, CD would be deprived of her liberty within the meaning of Article 5 of the European Convention of Human Rights and the Mental Capacity Act 2005 for the period when she would be transferred to and from and kept in City Hospital for the purposes of administering the said treatment

IT IS DECLARED PURSUANT TO THE MENTAL CAPACITY ACT 2005 THAT CD lacks capacity to –