Mental Health - July 2010
Best interests and conveyance to hospital
The High Court has authorised the use of force to take a
patient from her home
The recent case of PS concerned a woman with a
learning disability who has been diagnosed with uterine cancer and
will require surgery. Because the woman lacks capacity to make
decisions about her medical care and treatment, the relevant NHS
hospital trust sought a declaration both for the surgery and for
the measures necessary to ensure that the surgery took place. The
case was heard by Sir Nicholas Wall, the President of the High
Court’s Family Division (DH NHS Foundation Trust v
PS, 26 May 2010).
The doctors treating PS felt that the best
treatment for her would be surgery in the form of hysterectomy and
the removal of her fallopian tubes and ovaries. Without this
treatment, they had no doubt that the tumour would spread and
eventually lead to her death.
PS had a phobia of hospitals and needles,
however, and although she had agreed on previous occasion to
undergo surgery, she had failed, and on one occasion refused, to
attend hospital. The clinical team had therefore come to the
conclusion that special arrangements would be needed to ensure that
PS underwent the operation and remained in hospital to recover.
The Trust proposed that a consultant
anaesthetist, a learning disability community sister and an
ambulance crew attend PS’s home in a final attempt to persuade her
to come into hospital. If she once again refused, a sedative
would be given to her, mixed into a soft drink.
Post-operatively, PS would be given analgesics whose sedative
effect made it unlikely that she would be able to abscond. It
was acknowledged that force might be necessary to ensure PS
returned to her hospital bed. It would, however, be used only as a
last resort.
Having considered the evidence, Sir Nicholas
concluded that surgery was clearly in PS’s best interests. He was
satisfied that the alternatives had been carefully considered and
were inappropriate in this case. Whilst an operation carried
the usual risks of death, those risks were no greater in this case.
Sir Nicholas was also satisfied that it might be necessary to use
sedation, and even force, to convey PS to hospital, but also that
such measures would only be used if persuasion failed. In respect
of PS’s ‘detention’ in hospital post-operatively, he said it was
not necessary to invoke deprivation of liberty provisions: if it
was in her best interests to undergo surgery it would also be in
her best interests to recover appropriately from it.
This case highlights the importance of
approaching cases concerning incapable patients thoughtfully,
sensitively and systematically. The Trust was able to
demonstrate very clearly that PS lacked capacity to make decisions
about her medical treatment. It had fully considered all
other options and attempted to persuade PS to attend for surgery on
multiple occasions, albeit without success. Though onerous - and
though, with its emphasis on coercive conveyance, possibly more
draconian than is common in such cases - the judge’s decision is
understandable. Looking beyond the immediate facts, however, the
implication that a patient is not deprived of liberty by measures
taken in her best interests might be a contentious one.
Bethan Bagshaw, Trainee
Solicitor
Weightmans LLP
The case discussed in this article may be
found here.