DH NHS Foundation Trust v PS

I am handing down this short judgment in open court: (1) because I believe that the outcome of applications such as these (suitably anonymised to protect the parties) should be in the public domain; and (2) to assist others who may be faced with a similar dilemma.

These are proceedings brought in the Court of Protection and instituted on 13 April 2010 by the DH NHS Foundation Trust (the Trust) against PS (by her litigation friend, the Official Solicitor) designed to ensure that PS undergoes necessary surgery. A copy of the declarations which I made is attached to this judgment. I am grateful to all the parties and in particular to the Official Solicitor, for the care with which the proceedings have been presented, and the speed with which they have been brought to court.

PS is 55. As the Official Solicitor accepts she has “a significant impairment in intellectual functioning as a consequence of a learning disability” and thus lacks the capacity to make decisions about her healthcare and treatment. She also lacks the capacity to conduct or defend proceedings.

I have before me an independent report prepared by Dr NS, a consultant psychiatrist in learning disability which is uncontentious and which concludes that PS does not have capacity within the meaning of the Mental Capacity Act 2005 (the Act) either to make decisions concerning her future medical treatment, or to conduct proceedings. Dr NS’s statement is compelling, and I have no difficulty in accepting it.

Sadly, PS has cancer. An ultrasound scan taken on 17 August 2009 showed evidence of a 43mm x 39mm mass in her uterine cavity, and a hysteroscopy, performed under general anaesthetic on 19 November showed evidence of a large tumour in the uterus, which obliterated the uterine cavity and extended through into the cervix. Subsequent histology confirmed the existence of what is described as a “Grade 1 well differentiated endometrial adenocarcinoma”. In layman’s language, PS has cancer of the uterus. The tumour is, fortunately, growing only slowly, although there is no evidence as to its current extent. Plainly, however, the sooner the operation takes place the better.

PS’s treating doctors are in no doubt that she needs to undergo what is described as a hysterectomy and bi-lateral salpingo-oophorectomy (removal of the fallopian tubes and ovaries) , and that without surgical intervention the tumour will spread and lead, ultimately, to PS’s death.

I both have a report and heard oral evidence from Mr. HJ, a consultant gynaecologist with a special interest in oncology employed by the Trust. Mr HJ is of the opinion that surgery represents the best available treatment for PS. Mr. He also advised me that it was normal in such cases to conduct an MRI scan of the patient in order to “stage” the cancer – that is to ascertain the extent to which it has spread. In the case of PS, however, such a course of action is not possible. Quite apart from her hospital and needle phobia (which I shall address in due course) an MRI scan is claustrophobic and requires the patient to remain very still. As a consequence, a decision was taken on 26 November 2009 at a multidisciplinary meeting that PS should not undergo an MIR scan.

Attempts have been made to explain the need for surgery to PS and she has agreed on previous occasion to undergo an operation. However, she has failed (and on occasion refused) to attend hospital for treatment, and the clinical team treating her has reluctantly come to the conclusion that special arrangements will need to be put in place both to ensure that she has the operation and that she remains in hospital for her post operative recovery.

Mr. HJ explains in his statement the normal procedure once a patient arrives in hospital for an operation, and explains why that procedure cannot be used in the instant case. He also explains the need for PS to be sedated. He explains why the alternatives to surgery (radiotherapy or chemotherapy) are inappropriate. He explains the possibility that the cancer has extended beyond the uterine muscle and gives reasons for the plan not to undertake extensive surgery apart from removing the uterus, the fallopian tubes and the ovaries. He also goes into the detail of PS’s post operative treatment, and the need to use reasonable force and / or sedation to prevent PS leaving hospital. I accept Mr HJ’s evidence both as contained in his statement and as given to me orally.

I also have a report, and heard oral evidence, from Dr RE, the lead consultant anaesthetist employed by the Trust. Dr. RE dealt in particular with the steps necessary (1) to ensure that PS attended hospital for the operation; and (2) did not leave it prematurely after the operation has taken place. He gave details of the plan for a consultant anaesthetist to travel with an ambulance crew to PS’s home, and in the event of her refusal to attend hospital for her to be given a dose of sedative (Midazolam) which is mixed with a soft drink such as Ribena. The only realistic risk which he envisaged in this process would be if the patient become over-sedated and developed breathing difficulties. Hence the need to have a consultant anaesthetist on hand. In what he described as “a worst case scenario”, he envisaged an injection of a fast acting and very safe sedative (ketamine).

In relation to the post-operative stage, Dr RE agreed with Mr HJ about the need for PS to have a plastic cannula inserted in order to administer intravenous fluids and analgesic medication. He was of the view, however, that the cannula could be so bandaged as to make it unlikely that PS would be able to pull it out. She would also be given analgesic medication which would have a sedative effect on her, thereby rendering it unlikely that she would be able to abscond. However, it might be necessary to use force as a last resort to ensure that she returned to her hospital bed. She would, moreover, be closely monitored by nursing staff.

Once again, I have no hesitation in accepting the evidence of Dr. RE both as contained in his statement and as amplified in oral evidence.

I also have in my papers a detailed statement from AH, a learning disability community sister employed by the local Mental Health Services NHS Trust. AH has spent “a considerable amount of time” building up her relationship with PS and her family, and has met PS every two or three weeks since January 2010. She describes previous attempts to persuade PS to go to hospital. She concludes that it will be necessary to have what she describes as a “back up plan” in case she is unable to persuade PS to go to hospital for the operation. She emphasises that she will make “every effort” to try to avoid the use of a sedative, but since she is unable to guarantee PS’s admission, she states her belief that it will be necessary for a consultant anaesthetist to attend as back-up if the patient cannot be persuaded to attend voluntarily.

AH was not called to give evidence, but I have no hesitation in accepting the matters set out in her statement.

In my judgment, the evidence clearly establishes that it is in the best interests of PS to undergo a hysterectomy and bilateral salpingo-oophorectomy in order to treat her endometrial cancer.

I am satisfied that whilst such an operation carries the usual risks of morbidity, these are no greater in PS’s case than there would be in the case of any other patient. Such risks, accordingly, do not render the operation inappropriate.

I am also satisfied that the alternatives to surgery have been carefully considered, and that given her condition generally, combined with her phobia of hospitals and needles, these alternatives are inappropriate.

I am also satisfied that it would be inappropriate for PS to undergo an MRI scan.

I am further satisfied, given her hospital and needle phobia, that it may well be necessary to sedate PS in order to convey her to hospital, and that the risks of sedation in these circumstances have been appropriately addressed by the Trust. The need for such sedative treatment will only arise if persuasion fails, and I am accordingly satisfied that it is necessary for the trust to authorise such treatment as being in PS’s best interests, and to use force if necessary to sedate her and convey her to hospital.

In my judgment, it follows from paragraphs 11 to 14 above, that it will be necessary to detain PS in hospital during the period of post-operative recovery. After mature consideration, the Official Solicitor, on PS’s behalf, came to the view that it was not necessary to invoke the Deprivation of Liberty Provisions under Schedule 1 of the Act. I agree with that analysis. If it is in PS’s interests (as it plainly is) to have the operation, it is plainly in her interests to recover appropriately from it. In this respect I found Dr RE’s evidence compelling.

In conclusion I am entirely satisfied that it was right to make the declarations sought by the Trust, and although the application is unusual and may involve the use of force, I am nonetheless impressed by the care and thought which have gone into ensuring that PS receives the treatment which she plainly needs, and which it is plainly in her interests to have.