Local Government - March 2009
Adult Services – best interests
On 12 January 2009, Lord Justice Bodey ruled
that it was lawful to use sedation, restraint and/or force to
investigate a 66 year old patient’s breast lesion which was
suspected to be cancer.
In April 2008 the Patient was detained under
section 2 of the Mental Health Act 1983 so that she could receive
treatment for her mental illness. Early onset dementia was excluded
by MRI and SPECT scan. Psychiatrically, there was no obvious reason
to detain the patient. However, during her admission she asked for
a plaster for her breast which was bleeding. She was seen by a
breast Surgeon who noted an ulcerating lump which was fixed to the
skin and deeper structures in the upper outer part of her left
breast.
The patient was told she had cancer and that
oral hormone medication should be taken. She was referred for
needle core biopsy to assess whether the lesion was hormone
receptor positive (if it was, hormone medication could reduce the
size of the lesion, lessen symptoms of bleeding/pain and offer a
cleaner area for mastectomy).
Although, on occasions she seemed pragmatic
and detached about her diagnosis, in the main the Patient refused
to take any oral medication or to accept she was suffering from
breast cancer. She refused to attend appointments and in the
face of frank conversations with her Consultant Psychiatrist and
Consultant Surgeon, she suggested they had the wrong patient.
At a best interests meeting the Clinicians,
Social Worker and independent Mental Capacity Act Advocate
concluded it was not in the patient’s best interests to use force
or restraint to undertake needle core biopsy or mastectomy. The
Surgeon explained that hormone medication and mastectomy were the
patient’s only treatment options and they would not increase the
Patient’s life expectancy. Ultimately it was considered that
forcibly undertaking this treatment would not be practicable
(hormone medication is a daily oral dose and mastectomy would
require several weeks of monitoring).
The Surgeon sought legal advice which resulted
in the Official Solicitor being appointed for the Patient.
Independent Psychiatric, Surgical and Oncological opinions were
obtained. The treating Doctors discussed the issues with the
Independent experts. Joint statements were prepared.
The Psychiatrists agreed that the patient did
not have capacity. The Oncologists proposed the Patient could be
treated with an injectable form of the hormone medication (given
once a month) which could improve the prospect of compliance and
disruption but this would also require restraint. An Application to
the Court of Protection for a declaration as to the Patient’s
capacity and best interests was issued.
Prior to the hearing a further discussion
between all Consultants, in the presence of Counsel for the
Official Solicitor and NHS Trust, resulted in an agreement
that:
- Psychiatrically the Patient showed signs of
deterioration which justified a Mental Health Act
assessment
- If this resulted in detention, the most
likely treatment would be a monthly injection of anti-psychotic
medication
- Psychiatric staff were prepared to assist the
Surgical investigations if the Court
declared restraint/force could reasonably be used (the Surgical
staff had no experience in restraining patients)
- This would allow a needle core biopsy to be
taken which would show whether hormone medication could be
effective
- If it was, monthly hormone injections offered
the Patient the best chance of reducing the lesion. It was
suggested that both anti-psychotic and hormone injections could be
performed at the same time to reduce the occasions of
restraint.
In spite of the clear evidence that treatment
would not necessarily increase life expectancy it was accepted that
the prospect of leaving the lesion untreated to ulcerate, bleed and
potentially cause further pain and suffering to the patient was not
reasonable. In those circumstances it was agreed that using force
to investigate hormone receptor status and to administer hormone
medication was justified and practicably possible when assisted by
psychiatric staff.
Lord Justice Bodey approved this plan and
declared it lawful to use the minimum level of sedation, restraint
and force possible to undertake the needle core biopsy and give
hormone medication.
Since the Court’s declaration the Patient has
been detained under Section 3 MHA and when faced with the prospect
of force being used, the Patient agreed to the needle core biopsy.
This proved the lesion was hormone receptor positive and the PCT
has agreed to fund injectable hormonal medication.
The Court of Protection will review the
position in six months. The Surgeon intends to consider whether a
palliative mastectomy is appropriate. Initial discussions
concluded that forcibly undertaking mastectomy would be
impractical. However, there is a possibility the Patient’s
psychiatric condition will improve and that she will comply with
more invasive treatment.
Discussion
In this case,
medical and surgical Consultants found themselves dependent upon
Psychiatric colleagues. The in put of the Psychiatric staff was
invaluable and this case required a practical approach to the
delicate interplay between psychiatric and physical health.
It was crucial that this Patient required in-
patient psychiatric care. There is an even greater hurdle to
overcome in similar cases where the Patient does not fulfil the
criteria for detention under the Mental Health Act. All agreed that
in this case it would be impractical to enforce treatment at
home.
Treating medics must impress upon their
psychiatric colleagues the importance of their input. Namely
to:
- determine capacity
- determine whether capacity or compliance can
be improved by psychiatric treatment
- provide practical expertise in restraining a
Patient to facilitate investigations/treatment.
Jasmine Armstrong
Associate
Weightmans LLP