By Celia Kitzinger, 17 May 2023
A man in his 70s with schizophrenia (Mr Clarke, not his real name) was diagnosed with malignant tumours in his bowel in mid-2022. The applicant Trust (University Hospitals Plymouth NHS Trust) recommended surgery, but Mr Clarke declined it, stating variously that he did not have cancer, that if he would heal himself, and that even if he did have cancer, he would not want surgery due to his poor quality of life.
After some delay – attributable I believe in part to some uncertainty about whether or not Mr Clarke had capacity to make his own decision about surgery – the Trust applied (jointly with the Community Mental Health Services provider) on 17 April 2023 for a declaration that Mr Clarke lacks capacity to make his own decision about surgery, and that it would be in his best interests to have surgery. I watched two hearings in this case (COP 14075898).
The first hearing was on 24 April 2023 before Mr Justice Moor. It was very short and did not progress matters much because the Official Solicitor had not yet been appointed. The judge simply made an interim declaration that there was reason to believe that the patient lacked capacity and put arrangements in place for another hearing as soon as possible.
On 10 May 2023, the matter came before Mr Justice Hayden, with Rhys Hadden of Serjeants’ Inn acting for Mr Clarke. As at the earlier hearing, Jack Holborn of 39 Essex Chambers represented the applicant Trust, and Ian Brownhill of 39 Essex Chambers represented the mental health services provider. By this time, the parties were all in agreement that Mr Clarke lacks capacity as to his care and treatment (and also lacks litigation capacity) and they had also reached a consensus position that surgery was in his best interests. Moreover, Mr Clarke had recently had a change of heart, and agreed to have the operation. As he told the Official Solicitor’s agent: “Every time I have turned it down because I just didn’t think I was worth it, but I have felt bad a few times, so I have said I will have the operation, I don’t know whether it is the same thing, or it has got worse, but yeah I will have the operation”.
The issue in court was whether, if it turned out to be necessary, the court would give permission for physical restraint to be used to get Mr Clarke to hospital if he says, on the day, that he doesn’t want to go after all. There might also be a need for restraint once Mr Clarke is in hospital but before he has surgery, and as part of his post-operative care. The application asked the court to pre-authorise restraint if it turned out to be needed.
The judge said at the beginning of the hearing that he was “not persuaded of the need for physical restraint” and that he was “by no means sure that compelling him into this operation against his will would be in his best interests”. He pointed out that he had “proffered a view that is plainly different from what is said by all counsel. Physically restraining people to compel them to have operations is something from which I instinctively recoil, but that doesn’t mean I’m right. Occasionally, with psychotic mothers and caesareans, I have made such orders, but there is something intrinsically different in the context of motherhood and another life. I would like to ensure that everyone has a chance to reflect on this…”.
The doctor who was in the (virtual) courtroom raised his electronic hand at this point, and said he “completely agreed” with the judge in relation to physical restraint to get Mr Clarke to hospital and to keep him there during the 2-day period of tests and preparation prior to surgery. But “in the time leading up to the operation, when he’s in the anaesthetic room or operating room – well, even the most sane people tend to wonder whether that’s the right thing to do at that point”.
The judge took this on board, characterising it as “a realistic scenario of compliance until the scary bit – and then the panic”. He gave counsel 15 minutes to discuss this between themselves while he went away to think about it.
On returning to court, Rhys Hadden said that the revised plan was for attempts to persuade Mr Clarke to come to hospital of his own free will, and that there would be no physical restraint – with the proviso that if the first attempt to admit him failed because he resisted, a second attempt would be made no more than a week or two later. “On the specific point of physical restraint to administer the anaesthetic – if he reached that point and then said he was changing his mind, we would like to explore if light sedation pre-general-anaesthetic could be offered to calm any agitation he might have.” The doctor saw this as “entirely reasonable”.
However, counsel for the remained concerned about not authorising restraint “in that last ten minutes before surgery” (what the judge had called “the scary bit”). Mr Justice Hayden gave a brief oral judgment to resolve this issue.
“The essence of the contested view is whether, following sedation and admission for general anaesthetic, if at that final point, Mr Clarke, who has bowel cancer, ceases to cooperate with the process, it would be in his best interests to restrain him until the general anaesthesia inevitably does its work. In my judgment, while that approach might have a certain seductive attraction, it fails to recognise that surgery, preparation for surgery and recovery from surgery are part of a continuum, and no part of the process can be viewed in isolation. Mr Clarke has delusional beliefs which are powerful, and one facet of those beliefs is persecutory. There are a number of potential outcomes following this surgery, but one is that it may be necessary for Mr Clarke to have a stoma. The risk of that in his case is happily very low. That is not in any way to denigrate the stoma – merely to emphasise that Mr Clarke’s capacity to live with it is very limited, and such an outcome would be, for him, very problematic. Establishing a cooperative, trusting relationship to the extent possible for someone with his condition is absolutely essential, and so to restrain him at any point in the procedure strikes me as corrosive of the relationship between doctor and patient. Physically restraining someone against their will to have general anaesthesia for a serious operation is something that most of us instinctively recoil from, and for good reason – namely, that it is the repression of an individual liberty and it is disrespectful to individual autonomy. People who lose capacity for whatever reason don’t necessarily lose autonomy, and accordingly, and for all these reasons, I consider that the plan which has been forged in discussion today, which contemplates the use of midazolam prior to general anaesthetic, is the right level of intervention. I don’t in fact consider midazolam in these circumstances, properly analysed, constitutes chemical sedation, but it if does, then it is necessary and proportionate and I authorise it. Post-surgery, it’s anticipated that the post-operative pain may result in combative behaviour which is difficult to manage, and in those circumstances I approve a level of sedation that may be higher than that required for other people as necessary and appropriate. That would constitute chemical restraint, but is balanced and proportionate and I authorise it. There is no authorisation of restraint for conveyance to hospital. I’ve made the order and it has effect as of now, even if not sealed by the court.”
Finally, Hayden J asked for arrangements to be made for a lawyer to visit Mr Clarke and tell him face-to-face what the court has ordered as being in his best interests. From what the judge had read in the papers before the court, he had formed the view that “he is a man for whom a court order would appear to have a lot of significance. That is not so for everybody, but for him it clearly is” – adding “it comes to something when (laughs) respect for court orders is regarded as part of a delusional belief system, but it does seem to weigh very heavily in his mind”. The judge said that more than one attempt ought to be made to encourage him to cooperate with surgery voluntarily. If he does not, then the case can come back to court to seek authorisation for restraint.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 420 hearings since 1st May 2020 and is a prolific blogger. She is on LinkedIn (here), and tweets @KitzingerCelia