By Adam Tanner, 6 October 2020
On October 2nd 2020, I observed a hearing on Microsoft Teams, before Mrs Justice Lieven in the Royal Courts of Justice (COP 13659766 Re PA).
Lieven LJ was, as she has been in previous cases, clear that an introduction to the case should be provided for the purpose of transparency for observers in the virtual Court. Counsel on behalf of the applicant Trust, Fiona Paterson, therefore, gave a brief history of the facts of the case.
PA is a 61-year-old man who has a history of serious mental health issues, including paranoid schizophrenia. He currently also has Type II diabetes and asthma. His mental health issues have rendered him unable to consent to treatment for a severe infection in his foot and he has difficulties in complying with clinical examinations and allowing his dressing to be changed, due to his mental health problems. He has already had an emergency partial amputation to his foot at the beginning of September. However, the infection has been getting worse, and PA has been refusing to allow doctors to assess the leg or give him any further treatment.
The order submitted to the court in advance of this hearing, sought authorisation to amputate PA’s leg below the knee; however, during the week of the hearing, there seemed to be some improvement in PA’s condition. His doctor said that on Monday there was around 75% necrotic tissue and 25% healthy tissue; but having inspected PA’s foot that morning he believed there had been some small improvements on this. The Court was therefore now being asked to authorise a series of events:
- To allow the doctor to administer a general anaesthetic to PA and, under general anaesthetic, conduct exploratory surgery to assess the true extent of the infection. He said he would debride the foot of any necrotic tissue, clean and sterilise the wound and apply a dressing.
- However, if the infection is found to be worse than currently believed, then the Trust seeks permission to proceed right away to a below-knee amputation.
Lieven J expressed her initial reluctance to grant such an order, because it was giving vast discretion to the surgeon in the operating theatre to decide whether the below-knee amputation is in PA’s best interests. She, therefore, wished to hear directly from the doctor who would be making the decision in theatre.
The doctor made it clear that he would favour ‘conservative treatment’ and that a below-knee amputation would be a ‘last resort’ and would have to meet an extremely ‘high threshold’. However, he also stated that should PA not have this surgery as soon as possible then PA is essentially a ‘sitting duck for rip-roaring infection which might take his life by systemic sepsis’. The doctor gave evidence that systemic sepsis could, in some circumstances, result in death within hours.
The reluctance to have two separate hearings, and allow for two separate surgeries, was universally agreed by all parties – in part to ‘avoid distress’ to Mr PA by requiring him to undergo two separate procedures, and in part to avoid delaying appropriate treatment. Counsel for the Official Solicitor, Nicola Greaney, supported the plan put forward by the doctor and was happy for the surgeon to have discretion to make a best interests decision concerning amputation in theatre on the day.
Mrs Justice Lieven, therefore, granted the order as proposed and that discretion should be given to the operating doctor with the understanding that there is a high threshold needed to undertake a below-knee amputation and that ‘conservative’ treatment options would be preferred.
This case is by no means the first time in which the Court has had to decide whether it is in the best interests of a person who lacks capacity to have part of his lower extremities amputated.
In the case of Wye Valley v B , a 73-year-old man who had a long-standing mental illness, as well as Type II diabetes, was refusing to allow medical intervention for an infected foot. Consequently, doctors believed that P required amputation of the foot, or he would succumb to the infection within days. In that case, Peter Jackson J (as he then was) decided that, although P lacked capacity, it would not be in his best interests to go against his express wishes and amputate his foot. Peter Jackson J emphasised that it is vital not to disregard the views of a person who lacks capacity. The judge stated that when making a best interests decision, “there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values” (at para 10). It should also be noted that in this case, the judge went to meet Mr B in the hospital personally, to understand his views.
Similarly, Mrs Justice Lieven has, in a previous amputation case, East Lancashire Hospitals NHS Trust v PW , stated that she had spoken to the patient over the phone “in order to try to understand his wishes and feelings”. This case had similar facts to Re PA: P was a 60-year-old man with paranoid schizophrenia who developed sepsis relating to a diabetic foot infection and had a partial foot amputation. The clinical team similarly sought a below-knee amputation as one option of treatment. Lieven J had regard for Peter Jackson J’s previous ruling in deciding that, despite P not wanting an operation, it would be in his best interests to have it done.
Unlike these two earlier cases, there was minimal information provided in court or in the oral judgement in Re PA about the wishes and feelings of Mr PA. As far as we know from what transpired in court, the judge had not spoken to PA, nor was PA in court (and it was not clear whether or not he had been invited to attend). Counsel for PA (via the Official Solicitor) simply said that PA did not wish to have his leg amputated. He had become more ‘cooperative’ in recent days, in that he had permitted doctors to change his dressings and observe the foot, but would not allow the doctor to touch or closely inspect the wound. At the time of the hearing he had also not agreed to amputation.
What should be noted, however, is that Mr PA’s brother and his son both spoke during the hearing. The judge asked PA’s brother how he thought Mr PA would feel if he woke up and found he’d been given a below-knee amputation. “I know for a fact he won’t be happy, whatsoever”, he said. “He won’t be happy at all. But as a family we’ve gone through it from every angle and we can’t see any other way forward.” The judge asked how Mr PA had responded to the partial amputation of his foot that he’d already been given: “Not as bad as I expected it to be. But I think maybe if it was below the knee, maybe he would have reacted different.” Mr PA’s son asked to speak to the judge and said:
“I just want to say that when we visited Dad on Sunday he was quite positive and cheerful and speaking about going home and life outside hospital. I think if he understood the life-threatening situation he’s in, he would be on board with the surgery. But he doesn’t seem to understand.”
This wasn’t explored in any detail, but the fact that Mr PA does not understand his predicament may be the distinguishing factor between this case and Wye Valley, in which P was said to understand the risks of his refusal. In Lieven J’s 2019 case, however, P was unable to understand the risks attached to his refusal. In the current case, Lieven J said she was satisfied that Mr PA was not refusing treatment “due to any religious or other deeply held belief system”, but simply because “he has no insight into his condition”.
In a short oral judgment, she authorised a ‘permissive’ order allowing the surgeon to proceed as proposed by the Trust, with “freedom of movement to go ahead and make a clinical decision” about whether or not to amputate the leg when Mr PA was under general anaesthetic (planned for Tuesday 6 October 2020). She pointed out that this proposal from the Trust was supported by the Official Solicitor and also by Mr PA’s brother and son who “do not seek to argue with what is suggested”.
There is an obvious need for speed in situations such as these, especially at a time when the justice system is incredibly backlogged with cases. It is therefore understandable that in urgent applications, not everything is addressed in granular detail. However, the views of the person at the centre of the case should not be given short shrift. Of course, as observers we are not privy to the court papers, and so do not know what was laid out in position statements which could well have provided more in-depth information about P’s wishes and feelings, but these were certainly not raised in Court.
This case may be heading back to the Court in the coming days to address the discharge plan for Mr PA, as at present there is currently no post-treatment plan in place whatsoever. This was an issue of great concern to the judge – not least because, as Counsel for the Trust pointed out “with the Covid pandemic we need to make sure PA doesn’t languish in hospital any longer than is necessary”.
As a PhD researcher who researches and writes on the role of the courts under the MCA 2005, this case was extremely interesting to observe as there has been a series of cases which concern the amputation of patients’ limbs when those patients have been, predominantly, diagnosed with paranoid schizophrenia. Lieven J’s handling of an emergency application and the way in which best interests was decided in this case are going to greatly inform my future research into the way in which the best interests test is applied by professionals in both medical and legal settings. Cases such as these illuminate when a patient’s voice should be heard and what a fine balance it is when trying to decide the weight, if any, which should be given to the views of an incapacitous person.
Adam Tanner is a PhD researcher in mental capacity law and has contributed previous blogs to this Project (e.g. here). He tweets @AdamrTanner
Photo by Street Donkey on Unsplash
11 thoughts on “A Permissive Order For Amputation Contrary to P’s Wishes”
Cases like these show there needs to be a much stronger presumption that P will be able to directly participate, a much stronger emphasis on exploring their wishes and feelings, and somebody (the OS!) putting the case for what they want…
However much we dress it up, and however great some judges are, the ‘best interests’ standard has too much room for slippage into practices like this where the person’s wishes and feelings are barely explored. It’s no answer that P’s wishes and feelings might have been explored in the court papers; they clearly weren’t important enough to the legal actors in the case to properly discuss them in court. They should be at the centre of each and every case.
A standard with a (rebuttable) presumption that the person’s wishes and feelings are determinative would force the courts (and other decision makers) to properly explore the person’s wishes and feelings and justify overriding them. Likewise, a rebuttable presumption that P participates directly in proceedings would force a justification in each case of why they haven’t.
Really helpful to have the cross references with other relevant caselaw, thank you.