Sherwood Forest Hospitals NHS Foundation Trust [2020] EWCOP 5
This article originally appeared in Issue 5 (May 2020).
“Mrs H” was a 71-year-old lady with a history of Bipolar Affective Disorder. She was also suffering from squamous cell carcinoma on her face, but for an extended period of time, she refused to accept the diagnosis or undergo any treatment.
She had been assessed as lacking capacity to make decisions in relation to her medical treatment in May 2019, but the Trust providing her with care did not make an application to the Court of Protection to confirm the way forward until December. That is because the clinicians involved were “perplexed as to whether it was appropriate and if so in what circumstances for Mrs H effectively to be forced, physically and by coercion if necessary, to attend for her treatment and, if so, how that might be achieved”.
Hayden J expressed some criticism of this delay, querying why an application had not been made sooner. He reiterated his view, as expressed in a number of his previous judgments, that although an avoidance of delay was not explicitly incorporated into the scheme of the Mental Capacity Act 2005, it was to be read into that scheme by virtue of Articles 6 and 8 of the European Convention on Human Rights (“ECHR”), particularly because in many cases delay would be inimical to the best interests of the patient concerned. He also referred to the Guidance recently promulgated by the court, which confirmed that applications were appropriate where e.g. the merits of the case were finely balanced, or there was a difference of medical opinion. At [32] of his judgment he said:
“The Mental Capacity Act creates what can both conveniently and accurately be described as a presumption of capacity and, where it is absent, imposes upon those best placed to do so, an obligation to deploy all reasonable options available to them in order to promote a return to capacity. A reasonable period before making an application might have been a week, two weeks, three weeks, but it was certainly not 6 months.”
The merits of the application before him make for utterly tragic reading. During the period when Mrs H refused to accept the diagnosis or engage with treatment, the lesion on her face grew significantly, to a point where it was causing significant pain and discomfort. Without any treatment, she was likely to face an agonising decline and death within a period of months. The lesion had become so extensive that curative radiotherapy was no longer a viable option, and there were even risks that surgical excision, which offered the best hope of curative treatment, would fail – particularly if the tumour had become attached to the eyeball. Palliative options were also limited.
A particular feature of the case was that, by the time of the hearing, Mrs H had met and reposed her trust in a particular clinician – this engagement had led her to become, to an extent, acquiescent to treatment, although as the court noted, she was still not consenting “in any capacitous way”. However, the new circumstances meant that the proposed care plan did not propose the use of force to bring about treatment (e.g. through restraint and sedation). Rather, the care plan which was ultimately approved by Hayden J (unfortunately not detailed in the judgment) appears to have involved securing Mrs H’s agreement and compliance without explaining the significance of what she was to undergo. Initially, the judge was concerned that she would be “inveigled into serious treatment that she did not understand, in circumstances where there is no longer any plan to try and explain it to her”. However, after considering all the evidence, he concluded that in fact the plan, although unusual, was “intensely sensitive”, and that it was “the appropriate and kindly way forward and one that respects, in different ways, Mrs H’s dignity, her autonomy and the very grave circumstances that she finds herself in”.
He concluded that the proposal was in Mrs H’s best interests.
