HN (Out of Hours Application)

This is the record of a decision made at an out of hours hearing on the evening of Friday, 23 September 2016, when permission was granted for an urgent operation to be performed on HN, a person lacking decision-making capacity.

HN, who lives in the Midlands, is a woman in her fifties. She suffers from depression and has some psychotic beliefs. She is currently detained under s3 Mental Health Act 1983 at a hospital in the Midlands run by the applicant Trust.

Several weeks ago, HN sustained a number of injuries in the course of an apparent suicide attempt. These included a severe injury to her shoulder. Since then, she has been treated in two hospitals.

HN has refused most treatment for her injuries. For the most part, these are healing, but her shoulder is more severely damaged and her treating surgeon, Mr S, considers that it will require specialist reconstructive surgery in due course, although it is too early to attempt this at the moment.

The application was brought on an urgent basis because Mr S was alarmed to discover earlier in the week that part of HN’s humerus bone had ridden up, probably under the influence of muscle spasm, and was protruding through the skin.

Mr S was concerned about the risk of infection. He considered that sepsis might already be present in the tissue and could spread to the bone. He acknowledged that it was difficult to specify the exact degree of urgency, because he had not yet explored the wound, but thought there might already be a degree of infection. He also acknowledged that it was hard to estimate what would happen if the operation is postponed, since it is not usual practice to delay exploration and treatment in such circumstances. However, he was concerned that if the infection did get into the bone, the possible consequences would be very serious:

The Trust therefore wished to carry out an urgent operation on HN’s shoulder to clean out the wound, trim back the bone, and seal it up again. It was envisaged that HN might resist treatment to the extent that restraint would be necessary to ensure that she was anaesthetised. The Trust proposed to carry out the operation no later than the morning immediately following the hearing.

Because HN was thought to lack capacity to consent to treatment, a capacity assessment was carried out on the night before the application was heard by Mr S and by an anaesthetist. The clinicians explained what they wanted to do and why, and the risks of both having and not having the operation. Mr S’s view was that HN could understand and retain the information relevant to the decision whether or not to consent to the operation, but could not use and weigh that information in order to make the decision. She did not engage in any discussion, and although she consistently refused treatment, she was unable to give any reason.

Mr S consulted three other doctors who agreed that they would carry out the same procedure in these circumstances. The ward sister was also in agreement with the proposal. HN’s only known family is a relative by marriage who did not wish to take part in the application, but who had attended the hospital and agreed the operation should take place.

The application was made in the Court of Protection and under the inherent jurisdiction of the High Court. The Trust recognised that the planned operation could potentially involve a deprivation of HN’s liberty over and above that authorised by her detention under s3 Mental Health Act. As HN was detained at the hospital where it was proposed that the operation would be carried out, Case A of Schedule 1A to the Mental Capacity Act applies and she is ineligible to be deprived of her liberty pursuant to the MCA 2005; the authorisation of the High Court’s inherent jurisdiction was therefore sought in accordance with A NHS Trust v Dr. A [2013] EWCOP 2442.

I was provided with detailed evidence in the form of a witness statement from Dr S setting out the background to the case, the planned operation, and the pros and cons of going ahead as proposed. I was also provided with supporting evidence relating to HN’s physical and psychiatric symptoms.

The Official Solicitor had been told that there was a possible hearing earlier in the day, but had not been provided with application papers within office hours. The Official Solicitor does not offer an out of hours service and so did not attend the telephone hearing.

I was satisfied that the evidence provided covered all the material issues, and that there was nothing to be gained by hearing oral evidence or by prolonging the proceedings further, recognising that the operation should take place as soon as possible. Should a further operation be required in due course, the Court considered that a separate application should be made.

I considered that, in view of the information about this patient’s medical and mental state, it would not be in her interests to be spoken to directly, but that it was taking of her views as recorded in the evidence, and that it was appropriate to rely upon the evidence of the clinicians.  The need for the operation being urgent, there was no preferable way of gathering her personal views.

The evidence that it was in HN’s best interests to have this relative minor operation in order to prevent much more serious harm was compelling and I authorised the operation to be performed as soon as possible.

The Trust has subsequently confirmed that the operation took place the following morning, and had gone as expected with no problems. HN went to theatre very passively, with no restraint or sedation. She is currently on intravenous antibiotics, as it appears that the fracture has indeed become infected.

The Court of Protection Transparency Pilot does not apply to these proceedings, which relate to serious medical treatment and therefore continue to be governed by Court of Protection Rules Practice Direction 9E. There is however a public interest in cases of this nature being made public so that it can be placed on the Bailli website. The Trust itself has been anonymised to avoid the risk of jigsaw identification, and details of HN’s physical and mental health limited for the same reason.