Doncaster & Bassetlaw Hospitals NHS Trust & Anor v C

This is an application by the claimant NHS Trust in respect of an elderly lady, C, who has been represented before me by the Official Solicitor. Their application of 18 June 2004 seeks a declaration that the Trust might lawfully administer a general anaesthetic to C against her wishes for the purpose of a CT Scan.

Their case is that a prior ultra-sound scan has revealed a suspected renal carcinoma. The Trust say that the CT scan is essential for the proper investigation and treatment of the carcinoma; this is in the best interests of C.

On 25 June I heard Mr Lock for the Trust and Mr Lloyd on behalf of the Official Solicitor. Having had an opportunity to consider the medical evidence presently put forward by the Applicants, the Official Solicitor does not oppose the present application. I considered the evidence and the authorities upon which Mr Lock relied. I approved a draft order on 25 June which had the consent of both counsel. I said that I would give my reasons shortly at a later date as there was a substantive appeal still in my list. I now give those reasons.

C has a history of mental illness over the last 40 years or so. By 1995 C had been admitted to hospital on a number of occasions. She has been reluctant to take medication. In the last few years she has had delusional beliefs.

She was voluntarily admitted to hospital in February 2004. She was subsequently detained initially under section 5(2) and then section 3 of the Mental Health Act 1983. She was prescribed medication but she was unwilling to accept it by injection. She spends time at home under section 17 of the Act. Dr Milne describes her as “floridly psychotic and without insight into her mental illness”.

Ultrasound was performed when she developed blood in her urine. She considered the scans had been substituted for someone else’s.

She repeated this to Dr Milne when she was seen on 20 May 2004. C described how she imagined things but they were real. She considered she was not ill and was in charge of her own body. She regarded medical treatment as unnecessary interventions that were part of a plot against her.

Dr Milne concluded that C was suffering from a mental illness, schizophrenia with perpetual abnormalities, paranoid delusions and a thought disorder. She had no insight into her mental illness. She is detained under section 3 because of the nature and severity of her illness and because they are a threat to her mental and physical well-being.

She considered that C lacked the capacity to make decisions about her physical health. In particular in relation to her left kidney she did not believe what medical advisers told her. She was unable to weigh up the benefits and risks of treatment options available to her. She was unlikely to be able to give meaningful instructions.

Dr Bloomberg, a consultant psychiatrist who has had ongoing conduct of C’s case, came to similar conclusions in her report of 10 June 2004. She considered that C was suffering from paranoid schizophrenia with delusions and hallucinations. She appeared to have no insight into her condition. She considered that if C had successful treatment for her cancer she had the prospect of a normal life span which she showed signs of wishing to enjoy.

Dr Harris, a consultant anaesthetist, in his report of 12 June 2004 had reviewed C’s medical records. He considered that C needed prompt investigation of a probable malignancy. There was a small risk associated with any general anaesthetic which had been assessed at 5 per million on average. Her moderately raised blood pressure increased this risk slightly. He was prepared to anaesthetise her if the court considered it was in her best interests.

He subsequently set out how this could be done if the unhappy position arose that she resisted the general anaesthetic. He had had some experience of anaesthetising uncooperative patients. There were nurses trained in safe restraint techniques. This usually led to uneventful anaesthesia. I was satisfied this would protect her human rights.

There is also a report from Mr Leveckis of 15 June 2004, a consultant urological surgeon. He too had examined her medical records. He pointed out that the ultra sound scan had revealed what was likely to be a malignant tumour in the left kidney. The main options were to remove the tumour and the kidney or undertake no surgical treatment. Chemotherapy might be recommended.

He went on –

“The key issue in determining whether to perform a radical nephrectomy is whether the tumour has spread to distant sites in the body. The only way to establish this with any degree of precision is by undertaking a more complex type of scan such as a ………. CT scan. ………..however it is my clear conclusion and that of the MDT (malignancy multi-disciplinary team) that it is in her best interest to undergo a CT scan to stage her tumour, even if this requires general anaesthesia. There is no other option if a proper assessment of the most appropriate further treatment is to be made.”

Finally there is a report from Dr Merrill, a consultant radiologist. He had been consulted by Dr Bloomberg on the options for further investigation of her potential malignancy. He told her that it was essential for the patient’s cooperation on a scan, failing which the only way to produce useful images was under general anaesthesia. He explained how a CT scan was performed and the essential value in the proper diagnosis of her present condition in order to determine recommended treatment.

The Official Solicitor has accepted without demur the substance of this medical evidence. Having read through it with care I have no doubt that I can rely upon it without the need to call any of the specialists to give evidence.

Mr Lock in his skeleton argument of 24 June 2004 has set out the law. It has not been challenged by the Official Solicitor. He pointed out the absolute right of a mentally competent patient to refuse to consent to any medical treatment whether the decision was rational or not (see St Georges Health Care NHS Trust v S (1998) 3 AER 673).

He asserts that the law assumes every adult to have capacity to consent unless the contrary is shown. However he quoted from the judgment of Butler-Sloss LJ as she then was in Re: MB (An Adult) (Medical Treatment) FCR 1997 Vol II –

“4.

A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when –

a)

the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question.

b)

the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re: C (1994) 2 FCR 151, a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one.”

Mr Lock submits that the facts of this case in relation to C come within paragraph 4(b) which I have just cited. I am in no doubt that that is correct. Furthermore with no less conviction I am satisfied that the CT scan is in C’s best interests at this time. It is helpful that C’s sister has indicated her strong support for the CT scan though that of course is not decisive.

Mr Lloyd told me that the Official Solicitor accepts Dr Milne’s conclusions. C lacks the capacity to make decisions in relation to treatment. There was no issue on the question of her capacity. Accordingly on 25 June 2004 I gave the claimants permission to carry out a CT scan in the terms of the order that was then drawn.