By Evelyn Palmer, 5th October 2021
On Friday 10 September 2021 I had my first experience of observing a Court of Protection hearing concerning serious medical treatment. It was an “urgent” hearing that had not made it to the court listings for the day and had no case number.
Having studied medical ethics at master’s degree level, I was interested to see how the court applies the best interests principles embodied in the Mental Capacity Act 2005 in practice.
The person at the centre of the case was P, a previously fit and healthy 71-year-old woman, who sustained a hip fracture having been knocked off her bicycle three weeks earlier by a car travelling in the wrong direction down a one-way street. She was said to have a long history of mental ill-health including anxiety, somatisation, agoraphobia, and a paranoid personality disorder with schizotypal features. P was withholding consent for hip surgery.
At the outset of the hearing, the applicant Trust (represented by Pravin Fernando of Serjeants’ Inn Chambers) considered her to lack capacity to make this decision and considered surgery to be in her best interests (with restraint if necessary).
The Official Solicitor (represented by Nageena Khalique QC, also of Serjeants’ Inn Chambers) took the preliminary view that P lacked capacity in relation to the proposed treatment but reserved her position both on capacity and on best interests until after hearing the evidence.
The case was heard by Mrs Justice Judd in the Royal Courts of Justice (via MS Teams).
Since the accident, P, who has a “marked distrust of medical professionals” had requested time to consider surgical treatment (vs “conservative management”) of her fractured neck of femur. Her delayed decision-making seems to have been led by her underlying and core belief that she cannot trust people involved in her care.
The medical team had acceded to P’s suggested approach and taken the conservative management route up to now. But P is in pain, and immobile, and has developed chest and urine infections. The hospital say she is at risk of developing a pulmonary embolism or deep vein thrombosis due to immobility.
The hospital Trust had applied, the previous day, for a declaration that P lacks capacity to make her own decisions; that it would be lawful and in P’s best interests for her to have surgery (either a total or partial hip replacement – to be confirmed during surgery), and that it would be lawful and in P’s best interests to be restrained and/or sedated if necessary for surgery to be undertaken. Without surgery, P, whose condition was said to be rapidly deteriorating, was said to have a high risk of death within days. Surgery was provisionally planned for Monday 13 September 2021, i.e., the next weekday after the hearing.
I was immediately struck by the transparency of this hearing.
As a member of the public, with no relationship to P, I was provided access details to join this virtual hearing, much in the same way I could sit in the public gallery of any open court without question.
The hearing also included P herself, who appeared on screen from her hospital bed on the ward, as well as the Trust’s three expert medical witnesses, comprising orthopaedic, geriatric and psychiatric specialists, each of whom gave oral evidence.
After an initial sense of satisfaction at being able to experience a real-life best interests hearing with no obstacles, my thoughts then shifted to the vulnerability of P, the intrusive and highly sensitive nature of the proceedings, and the apparent power imbalance.
The court seemed sensitive to this too. On behalf of the Official Solicitor, Nageena Khalique ensured that everyone in court knew that P was present: “She’s here, we’re talking about her, she will have the opportunity to speak, and if at any point she wants to interject, she may”.
The judge replied: “She’s listening to this but she’s probably not feeling very well. Has she got someone else with her who can support her? Is there a direct line of communication with her counsel? Does she know she can put her hand up if she wants to speak?”
Some time was spent ensuring that P was able to participate as fully as she wanted to, and a little later the judge pointed out to P that, if she preferred, she could remain in the hearing but with her video turned off so that we were not all watching her. That’s what she then did.
The judge was very aware, nonetheless, that P was present throughout and several times when the medical experts were talking about the “high risk of death” (via sepsis and pulmonary emboli), the judge commented, “it must be very difficult for P hearing this”.
The clinicians were also sensitive to P’s presence: one apologised to her for “speaking bluntly”; another apologised for giving evidence (about what surgery would involve) without having previously met P.
Later, P was offered the option of either addressing the court publicly to convey her wishes and feelings, or taking the opportunity to talk to the judge in private – she chose a private conversation.
The key person representing P’s best interests was the Official Solicitor but, in addition, as P has no close family or friends, an Independent Mental Capacity Advocate (IMCA) had been appointed. The IMCA supported the Trust’s application.
Despite an overwhelming level of support for P, I felt troubled by the significant ethical issue that surgery could be imposed against her will (notwithstanding its life-saving benefits) and that chemical and/or physical restraint might also be used.
The three main issues for consideration were:
- P’s capacity to conduct these proceedings and to make her own decision about whether or not to have the proposed surgery. The Official Solicitor was acting as P’s litigation friend but noted there did not seem to be any evidence before the court that P lacked litigation capacity.
- The subject-matter decision concerning surgery was, in particular, whether P’s mental health condition and increased anxiety undermined her capacity to properly assess the risks and benefits of undergoing surgery, and crucially, the consequences of not doing so. In line with s. 3 Mental Capacity Act 2005 (MCA), a person is unable to make a decision if she has an impairment or disturbance in the function of the mind of brain that causes her to be unable to understand, retain or use/weigh information relevant to the decision, or if she cannot communicate the decision.
3. If P were considered to lack capacity, then a decision had to be made about whether it is in P’s best interests for surgery to proceed. Best interests is determined in line with s.4 MCA, which includes taking account of the person’s past, and present, wishes and feelings (s. 4(a)-(c)). In addition to the surgical treatment, the Trust sought a declaration that it would be lawful and in P’s best interests to be restrained and/or sedated if this was necessary for the purpose of undertaking surgery.
A person must be assumed to have capacity unless it is established that they lack capacity (s. 1(2) MCA).
The court heard compelling evidence from a Consultant Psychiatrist who had assessed P’s capacity on three separate occasions. The consultant noted that P was not in contact with mental health services, but a review of her GP records indicated a long history of mental ill-health. Following the consultant’s own assessment, the view was formed that P has “all the hallmarks of someone with paranoid personality disorder”, and that there was evidence of “paranoid ideation” regarding neighbours and friends.
It was the consultant’s view that P presented as very anxious about her situation, and that the accident had destabilised her. When asked by counsel for the OS whether P would agree to having hip surgery, P was found to be distracted during those discussions, deviating from the issue at hand, believing the doctors to be against her, and eventually moving off the subject of surgery. P’s mental health condition was characterised by the consultant psychiatrist as “a paranoid personality disorder with some schizotypal features and a superimposed anxiety disorder”.
Following each mental capacity assessment, the consultant noted that P had capacity to understand and retain information relevant to her medical condition. P understands her situation and that it is the shared view of the medical team that she urgently needs surgery. The area where P was said to lack capacity is using and weighing information relevant to the decision that needs to be made, and this lack of ability to weigh the relevant information is caused by her mental health condition.
P’s counsel questioned in court whether in fact P lacked capacity: “Does she not have the ability to weigh up the pros and cons or is it that she’s making an unwise decision”. She asked: “You’re saying she has an inability to understand, retain and weigh, as opposed to saying, ‘yes, I know those are the risks, but I don’t care’?”
In response, the consultant was clear that “I don’t believe this is just an unwise decision in keeping with her pre-expressed beliefs. Her mental state is that she’s very distractable, very tangential when you’re talking to her…. It’s not possible to have that conversation with her because she deviates along the way and goes into wanting to go to another hospital because they might have more natural therapies…. I don’t think she can understand the consequences of different actions”.
The consultant’s evidence allayed my own concerns and I felt confident that P’s ability to make her own decision regarding surgical treatment was impaired. But was surgery in P’s best interests?
The court also heard oral evidence from a Consultant Orthopaedic Surgeon who considered urgent hip surgery necessary to give P an improved chance of sustaining life. The court was told that surgery within 36 hours of fracture is the established practice because the mortality rate is disproportionately high if a hip fracture is left untreated. Even in the best circumstances, patients have up to a 30% risk of mortality within the first year of hip surgery, increasing to 80% without.
When asked by P’s counsel why continuing conservative management would not be in P’s best interests, the consultant told the court that P’s general health is deteriorating. She is “on the pathway to mortality” due to blood clots on the lungs (the Trust’s fear of a pulmonary embolism having been confirmed by a CT angiogram the previous day), which is impairing her ability to breathe. Delaying surgery beyond next Monday would exponentially increase P’s risk of death within the next few weeks, meaning that P is unlikely to go home, and even if she does survive, the likelihood of her returning to independent living is very slim.
Despite an assessment that even with surgery “the road to recovery may be rocky for her…potentially with some unexpected twists and turns” the consultant orthopaedic surgeon formed the view that P’s chance of death would reduce to between 20% and 30%, and that the benefits of surgery greatly outweigh those of conservative management.
A Consultant Geriatrician was the last expert to give evidence, predominantly addressing best interests in the wider sense in terms of P’s post-operative recovery. Asked by counsel for the OS how P’s pain might be managed and whether surgery would increase the possibility of infections improving, the court heard that most patients do not experience severe pain following surgery; improved mobility would assist P’s urinary infection, as she would be better able to physically go to bathroom (eliminating the need for a catheter); and her ability to sit upright would help ventilate the lungs.
P was said to have good prospects of doing well post-operatively, and if she engages in rehabilitation she could expect to be able to engage in independent activities that are important to her, such as using public transport and going to the shops.
The person’s own wishes and feelings carry significant weight in best interests decision-making (see Wye Valley NHS Trust v B  EWCOP 60) and P is clear that she does not want surgery. On the morning of the hearing, an agent for the Official Solicitor had discussed with P “how she would feel if the judge decided that she should … have the operation”. The response was, “Devastated. I would cry my eyes out, like I have for the past 3 weeks”.
But on the other hand, P values her independence and absolutely hates the idea of going into a care home. Without surgery, “the likelihood of her returning home is extremely slim”, said the consultant orthopaedic surgeon. With surgery, returning home might be possible (she lives in sheltered accommodation).
After meeting with P privately, the judge also confirmed that P did not wish to die. P believes that organic food and natural treatments will enable her condition to improve and had told the judge she wanted to be treated at another hospital that might offer natural treatments.
While the judge could not make a declaration to the effect that P be transferred, she asked the Trust to note P’s wish and to accommodate P if possible post-surgery. It would not be practicable for P to be transferred before next Monday, given that urgent surgery had already been provisionally scheduled at the current hospital.
The Official Solicitor expressed concern that the application of physical or chemical restraint was likely to feed into P’s distrust of healthcare professionals and her paranoid beliefs, and said that this needed to be put into the balance when considering her best interests. She sought assurances from the Trust that any physical and chemical restraint would be the least restrictive option.
Clinicians hoped that restraint would not be needed and said that chemical restraint in the form of Ketamine (which results in rapid sedation and has minimal side effects if used in appropriate doses) would only be used in order to administer the anaesthetic if P remained non-compliant.
The medical experts confirmed sedation would only be deployed either at the time of transporting P from the ward to the operating theatre in order to minimise her distress. If P was physically resisting, short-term physical restraint remained a further option, involving an intra-muscular injection to sedate her for approximately 15 minutes.
I was relieved that medical professionals would first try to persuade and encourage P following the least restrictive course, and that physical restraint would be the very last resort.
Closing submission from the Official Solicitor
After hearing evidence from the medical experts, the OS decided she would consent to the declaration sought by the Trust because, in summary:
- Regarding capacity, P’s mental health condition, i.e., her personality disorder and persecutory beliefs compounded by anxiety, meant she lacked capacity to weigh the consequences of not having surgery.
- Regarding best interests, balancing all the medical evidence which pointed very strongly in one direction, the OS accepted that P’s condition was at a critical point. P is not going to get better by conservative management – she is not moving from the bed or accepting interventions from those who are caring for her. Her choices are limited. The benefits of surgery are in stark contrast to no surgery at all. Although there will be some compromise in her functioning in that surgery might not lead to a full recovery or to restoration of P’s pre-injury status, P has a greater possibility of returning home if she has surgery.
Having considered all the evidence and heard directly from P, Mrs Justice Judd decided that P lacked capacity to make her own decision about hip surgery because she was not able – either now or in the near future – to weigh up information or understand the consequences of making the alternative decisions. The judge accepted the medical evidence that with continued conservative management P would likely die within days or weeks; she would remain in considerable pain and her condition would continue to deteriorate. Given that P does not want to die, and has a strong preference for returning home rather than being discharged to a care home, the judge concluded that, notwithstanding P’s stated wish not to have surgery, it was in P’s best interests for surgery to proceed as soon as possible.
Mrs Justice Judd concluded that although there is still a risk of P dying post-surgery, that risk is considerably lower than if she were not to have surgery. Further, P’s pain and immobility would be much reduced.
While P may experience a rocky road to recovery post-surgery, there is a greater chance of her returning home sooner and in better health. The judge acknowledged that P is reluctant to undergo the operation and that it was causing her anxiety. However, looking at P’s best interests in the widest possible sense – the options, advantages, disadvantages and prospects of making a reasonable recovery, it was in P’s best interests to make the declaration sought by the applicant Trust, in the terms agreed by counsel.
By the end of the hearing, I was convinced that P wished to return home to living a fulfilling independent life, to the extent possible following her recovery. The evidence was strong that there was a high rate of mortality should conservative management be maintained although I am slightly doubtful that the risk of death is as imminent as suggested, given that P had already survived three weeks, albeit in considerable pain. That said, I accept that the longer the fracture remained unfixed, the higher the likelihood that P would not make as full a recovery as she would if treated sooner.
I felt that P and her best interests were genuinely at the heart of these proceedings, and that the declaration ordering surgery was the right outcome. I saw a rigorous but caring and collegial environment in court, with a genuine commitment to involving P. Counsel for the parties adopted a clearly non-adversarial approach throughout. The focus for everyone was on making the right decision for P.
Evelyn Palmer holds a master’s degree in Medical Ethics and Law, and has a keen interest in mental capacity, specifically in relation to serious medical treatment and Deprivation of Liberty Safeguards. She is a former mental health policy adviser at the Care Quality Commission, current Trustee of the Medico-Legal Society, and was called to the Bar in 2019. She tweets @MedicoLondon