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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> University Hospitals Southampton NHS Foundation Trust v Miss T & Ors [2023] EWCOP 54 (17 November 2023) URL: http://www.bailii.org/ew/cases/EWCOP/2023/54.html Cite as: [2023] EWCOP 54 |
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Strand London WC2A 2LL |
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B e f o r e :
(Sitting as a Tier 3 Judge of the Court)
SITTING IN PUBLIC
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(1) UNIVERSITY HOSPITALS SOUTHAMPTON NHS FOUNDATION TRUST |
Applicant |
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- and - |
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(1) Miss T (By her litigation friend, the Official Solicitor) (2) BT (3) ST |
Respondents |
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Ms Jenni Richards KC instructed by the Official Solicitor for the first respondent
Ms Amina Ahmed instructed by BT for the second and third respondents
HEARING DATE: 16 November 2023
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Crown Copyright ©
John McKendrick KC:
Introduction
The Evidence
Mr BT
Dr M
"A capacity assessment was undertaken following that meeting which concluded that [Miss T] did not have the capacity to make decisions about treatment for her cancer. Although [Miss T] is able to understand the relevant information to the decision, she is unable to retain the relevant information which impacts upon her ability to use and weigh that information to make a decision."
"As [Miss T] cannot retain the information for a period beyond the moment, she is unable to weigh up the risks, pros and cons of the different treatments and therapies available to her. She gives verbal consent to interventions without seeming to understand what they would entail."
a. radical chemo-radiotherapy with five weeks daily external beam radiotherapy and concurrent weekly cisplatin chemotherapy; and
b. high-dose rate brachytherapy as an in-patient.
"Radiotherapy carries significant short and long term side effects. In the short term the radiotherapy causes tiredness, loose bowels and diarrhoea, urinary frequency and cystitis and risk of both faecal and urinary incontinence. The radiotherapy may also cause nausea and occasional vomiting. These side effects are managed with dietary advice, nutritional supplements at times and supportive medication such as anti-emetics and loperamide.
In the long-term radiotherapy causes a risk of permanent bowel and bladder damage, although during the radiotherapy planning and treatment, we do our best to ensure that this risk is kept to a minimum. Vaginal narrowing and stenosis is also a recognised long term complication. As [Miss T] already experiences urinary and faecal incontinence the risk of this worsening in the long term is significant."
"The applicator is inserted in theatre. When the applicator is inserted the ring shape sits at the top of the vagina, just below the cervix with the black tube inserted through the cervix into the canal of the uterus. Additional needles are then inserted into the tissues surrounding the cervix. There will be needles inserted through the ring. If there is still vaginal extension at the time of brachytherapy, the 2nd diagram shows a perineal plate which would be sutured to the skin on the vulva with 6 stitches and then needles pushed through the vulval skin to treat extension down the vagina. The applicator is kept in-situ with gauze vaginal packing and sutured in place. It is understandable that patients find this treatment difficult to tolerate. In all circumstances of treatment, the patient is looked after one to one by a nurse with an epidural and patient-controlled analgesia providing continual analgesia throughout the 2 or 3 days of their admission. In view of the size of [Miss T's] tumour I would anticipate that interstitial needles will be required."
"During these procedures, the applicator remains in place for the full duration of the in-patient stay. The usual pathway is for the patient to lie still on their back and are catheterised. The insertion in theatre is usually done under sedation and with a spinal plus or minus epidural. The patient is also given a patient-controlled analgesia to press and a one-to-one nurse is allocated to care for the patient. If interstitial needles are required, then an epidural is inserted which is kept running for the duration of the inpatient stay. The in-patient team regularly review the patients with epidurals. For patients with capacity, the applicator is removed following the final treatment using a Methoxyflurane inhaler to manage the pain and anxiety.
The brachytherapy treatment pathway is extremely intensive, painful and understandably very difficult for patients to tolerate even when they have full capacity. Post traumatic stress disorder is a recognised sequelae from the treatment. In my opinion, Miss T would not be able to tolerate this treatment whilst awake and I would only attempt the brachytherapy if she were sedated or anaesthetised. For this reason, it is being proposed to undertake this part of the treatment as an inpatient on ITU sedated and ventilated for the whole time during her admission."
Professor Hoskin
"The proposal to deliver brachytherapy in four fractions over 3 days following a single operative procedure to insert the applicators reflects standard practice. Once the brachytherapy applicators have been put in place under anaesthetic it is important that they are not displaced by movement of the patient. This requires the patient to remain on bed rest throughout the three days. A urinary catheter is required and constipating medication is given to avoid bowel function during that time which would disturb the geometry of the applicators. Repeated scans before each of the four radiation exposures is imperative to identify any changes in applicator position and to recalculate doses to the bladder and bowel which will also change in size and position over this period. This is challenging for all women who have to undergo this procedure despite the use of regular analgesics and other medications. The proposal to undertake the brachytherapy under anaesthesia and sedation maintained throughout the period of treatment has been carefully considered and anaesthetic opinion given in the statement of Dr [K]. I agree that this approach is in the circumstances the only realistic means of delivering effective and safe brachytherapy given the underlying concerns with the ability of [Miss T] to understand and comply
with the requirements for brachytherapy."
Dr K
"I am not aware of any case where brachytherapy has been performed in our institution with a patient under prolonged sedation as is proposed here. We have, however, electively provided sedation and ventilation on GICU for other patients who lack capacity, for pre-operative optimisation over a period of several days before (semi) elective surgery. We regularly transfer patients within different areas of the hospital for scans and procedures and are very familiar with the processes involved."
a. damage to lips and minor injuries are common;
b. an allergic reaction in 1 in 10, 000;
c. the risk of death is very rare, occurring in 1 in 185, 000;
d. there are "less common" risks of chest infection, blood clots, heart attacks and strokes.
Dr Bell
"What do you consider the risk(s) to be to [Miss T] of general anaesthetic and do you agree with Dr K's risk assessment?
Response: there are identifiable risks associated with the proposal as set out within the above sections, but these are largely predictable and manageable, and cannot therefore be considered to outweigh the risks of not undertaking the proposed treatment.
What do you consider would be the likely consequences for [Miss T's] physical and (in so far as you able to comment on this) her mental health of receiving brachytherapy in the way proposed by the Trust?
Response: the most likely adverse consequence of three days' continuing sedation and ventilatory support would be persistent respiratory dysfunction including the development of a lower respiratory tract infection. On the balance of probability, [Miss T] would progressively recover from such a complication with antibiotics and conventional physiotherapy techniques.
5. In view of the Trust's concerns regarding [Miss T's] not being able to tolerate brachytherapy, do you have any view as to how sedation, and if necessary, ventilation, could be administered in the least restrictive way?
Response: I can see no alternative in this scenario to formal sedation, endotracheal intubation and mechanical ventilatory support for this phase of treatment."
"On the basis of the available information, I consider the proposal to conduct
brachytherapy under sustained sedation with an associated requirement for intubation and ventilatory support, to be in [Miss T's] best interests."
Nurses AB and SA
Emily Steel
"I find the hospitals are a bit dark as they don't have the lights on. The lights in the hospital. It's a bit dark. They do seem dark, they do".
The Law
"Further, in a case involving serious interference with the person's rights under the Convention for the Protection of Human Rights and Fundamental Freedoms or where the proposed procedure or treatment was to be carried out using a degree of force to restrain the person concerned and the restraint might go beyond the parameters set out in sections 5 and 6 of the 2005 Act amounting to a deprivation of the person's liberty, the authority of the court would be required to make that deprivation of liberty lawful."
Capacity
"The foregoing authorities now fall to be read in light of the judgment of the Supreme Court in A Local Authority v JB [2022] AC 1322. The Supreme Court held that in order to determine whether a person lacks capacity in relation to "a matter" for the purposes of s. 2(1) of the Mental Capacity Act 2005, the court must first identify the correct formulation of "the matter" in respect of which it is required to evaluate whether P is unable to make a decision. Once the correct formulation of "the matter" has been arrived at, it is then that the court moves to identify the "information relevant to the decision" under section 3(1) of the 2005 Act. That latter task falls, as recognised by Cobb J in Re DD, to be undertaken on the specific facts of the case. Once the information relevant to the decision has been identified, the question for the court is whether P is unable to make a decision in relation to the matter and, if so, whether that inability is because of an impairment of, or a disturbance, in the functioning of the mind or brain.
…
In A Local Authority v JB at [65], the Supreme Court described s.2(1) as the core determinative provision within the statutory scheme for the assessment of whether P lacks capacity. The remaining provisions of ss 2 and 3, including the specific decision making elements within the decision making process described by s.3(1), were characterised as statutory descriptions and explanations in support of the core provision in s.2(1), which requires any inability to make a decision in relation to the matter to be because of an impairment of, or a disturbance in the functioning of, the mind or brain. Within this context, the Supreme Court noted that s.2(1) constitutes the single test for capacity, albeit that the test falls to be interpreted by applying the more detailed provisions around it in ss 2 and 3 of the Act. Again, once the matter has been formulated and the information relevant to the decision identified, the question for the court is whether P is unable to make a decision in relation to the matter and, if so, whether that inability is because of an impairment of, or a disturbance, in the functioning of the mind or brain."
Best Interests
"Its [the court's] role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.
…
Hence the focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it."
"The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be."
"Dr V, in that final paragraph, recognises that the alternative to the undoubted challenges identified, is to put in place a palliative plan, involving certain death but one which would be "predictable and controlled". Dr V and others have referred to the sedation proposal as "chemical restraint". That is, I think, accurate. But in the context of what is being contemplated here, I find it an emotive term which does not, to my mind, really do justice to the skill and subtlety of what the general anaesthetists can provide" (para 26).
"There can be no doubt that the sedation plan carries significant and troubling risks. Some of those risks involve potentially very serious consequences. But the calibration of risk really requires confrontation with the alternatives" (para 33).
The Parties' Submissions
Analysis