Court considers how to operate against patient’s will

By Daniel Cloake, 2nd August 2021

This report concerns a case (COP 12132507 In the Matter of “AB” ) before The Hon. Mr Justice Hayden sitting remotely on 20 July 2021.

The subject matter of the hearing was presented like this in the Transparency Order:

  1. This application is listed for hearing at 10.30 am on 20 July 2021. The court will consider the following issues in respect of serious medical treatment and make consequential orders:
    • A) Whether AB lacks capacity to make the decision about amputation of his leg and his wider medical treatment, care and support;
    • B) Whether the treatment proposed, including the pre, peri and post-operative procedures, in AB’s best interests including in particular whether it is reasonable and proportionate to:
      • i) Sedate and, where necessary, restrain AB in accordance with the draft care plan in order to facilitate the proposed amputation is reasonable and proportionate;
      • ii) Administer medication covertly in order to sedate AB.
    • C) Whether it is lawful for AB to be deprived of his liberty in hospital, pre, peri and post-operatively.

The court was told, in an introduction prompted by the judge, that Mr AB is a man in his fifties who suffers from a form of schizophrenia and from type 2 diabetes. 

Ms Ulele Burham, the lawyer representing the Local Health Board, explained that complications arising from the diabetes had made it necessary to amputate his lower leg.  Mr Justice Hayden continued the introduction describing it as a:

“… very serious condition.  The bone had become weak and had dislocated.  Because of the erosion of the bone and changes in the shape of his foot and ankle, gradually bit by bit over the past few years had caused his mobility to rapidly decrease.  Even 40 yards to the shop required a taxi.  He has from time-to-time accepted some treatment for example casting and antibiotics but he was resistant to intervention as his perception is that his condition will cure itself.  There is no salvageable bone left in his hind foot.”

Ms Burham explained that Mr AB objected to the amputation on the basis that the injury to his foot could be cured by drinking Diet Coke.  We were told it was the view of the Health Board and Mr AB’s family that these “delusions” as to self-treatment were caused by his form of schizophrenia. 

The judge said in no uncertain terms that it’s “not an exaggeration to say he will die if he doesn’t receive treatment”.  Mr Justice Hayden considered that Mr AB’s resistance to treatment didn’t mean he wanted his life to end – and the determination with which he went to the shops “shows he has quite the fight in him”.

The Judge continued describing Mr AB’s background.  How in 2018 he was given a flat in a supported living environment, something described as a “sea-change in his life” which “manifestly transformed his life beyond measure”.  Throughout his adult life “repeated release and readmissions had become a vicious cycle” and it was “sad and ironic that this physical problem occurred when his mental health was more stable”.  The judge said he was “enormously positive about where [AB] is living” which meant AB “is well placed to confront” these problems.  This sentiment was echoed by the family who, in a written letter to the court, said they felt “[AB] is resourceful enough to enjoy life in a wheelchair once he has got used to it.

The letter, which we were told was jointly written by four of his siblings, was an “important document” said the Judge.  “So often when evaluating the best interests it is the lay evidence that best illustrates the individual” he concluded.  “I don’t want the family to think I have made the decision as a paper exercise.  The medical evidence is clear to me. I’d like to hear from one of the family members”.

The court heard from Ms C, who told the Judge that writing the joint letter was “quite an interesting experience for us to talk together and recall memories from when [AB] was 8 and how he wouldn’t wear his glasses”.  We heard how Mr AB’s mental health had started to deteriorate when he was aged 15 after his father had died but how the family had collectively supported him – “We’ve all discussed how we talked to him.  I spoke to him every night for 2 years.” she said.

Ms C described the change in Mr AB that occurred when he was placed at the supported living placement – “that’s really been very positive for him.  He was ready to start living a life… he talked with the excitement that an adolescent might have, about having a girlfriend or watching a football match.”  “Not necessarily only the privilege of adolescence!”, the Judge replied.

Ms C explained that Mr AB “is not a suicidal person, he may have schizophrenia but he’s not depressed. An amputation is the worst possible outcome apart from all the rest.  The longer it takes the worse his prognosis.  There is no doubt it has to happen and the sooner the better.

Mr Justice Hayden replied: “What’s so striking about [AB] is that he is surrounded by an incredibly supportive family who don’t just say the right thing but have followed through with support.  But many people in his position don’t have that support and how much it improves the quality of his life.  I congratulate you on the support you give him. I would like to pay tribute.  What I am worried about is that I would be sanctioning a drastic treatment, which he would struggle to understand why it had been ordered and I’m highly alert to maintain trusting relationships with those around him.”

Ms C replied that maintaining that trust is “virtually impossible to do” and it was “inevitable” that Mr AB would “think his leg has been stolen”.  “No question he will be really quite angry, but that is the nature of his mind.  An awful decision to have to make”.

Mr D, another of AB’s siblings, gave his opinion.  “I think that he will be upset and shocked.  But if given enough attention and support I think he can be supported into managing it”.  

The court considered how the procedure should be carried out given Mr AB’s objections.  It was discussed whether medication could be hidden in his Diet Coke.  Ms Burham submitted that this plan would not be in his best interests because “if he were to discover he had been medicated in a covert way, there’s the same problem of mistrust.  There’s no guarantee he wouldn’t be able to taste it – he knows quite well how it should taste.” 

Ms Burham explained that it’s the view of the Official Solicitor and the family that the best plan with the “lowest risk of failure” should be physical restraint without sedation.

Ms Bridget Dolan QC, acting as Mr AB’s litigation friend via the Official Solicitor, told the court that the proposed “restraint care plan was rudimentary” and they had only just heard of the involvement of a private company to action the restraint.  She explained that Mr AB has been subjected to forceful medication before, so “the experience wouldn’t be unusual”.  In any event it would be “preferable to see a restraint plan that wasn’t described as a first draft”.

Raising his last concern, the Judge asked to speak to Dr E who is responsible for carrying out the operation and who had written a detailed report for the court.  Due to her unavailability we instead heard from Dr F, a colleague of Dr E who – the court was told – was very familiar with the proposed plan for Mr AB.

Mr Justice Hayden recalls a case where he had ordered a below knee amputation to be performed but what took place was above the knee.  Quite why is still “a matter of investigation”.  Suffice to say this had “very very significant ramifications for their future mobility” and prevented the use of prosthetics.  “What I want to be utterly clear about, is why I can be confident this is an amputation below the knee” the judge says.

Content with the response from Dr F, the judge described the report prepared by Dr E as a not only a model report but a “paradigm” and asks that his thanks be passed on.

Concluding the hearing, Mr Justice Hayden told the parties that he hopes “all goes well” and encourages them to contact his Clerk with news of the outcome.  It is understood the operation was due to take place on Friday 23rd July 2021, some 3 days after the hearing.

And what was the agreed restraint plan I hear you ask?  Well, with an echo of the court’s reputation of being a #secretcourt sounding loudly, the parties were told to discuss the plan in private and submit the agreed order to the Judge for approval. 

Daniel Cloake is a blogger and news gatherer with a keen interest in law and the justice system. This post was originally published on his own site, “The Mouse in the Courtroom” (where you can read his many other blog posts).  He tweets @MouseInTheCourt

Photo by Roland Larsson on Unsplash

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