Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35 (02 July 2020)

This matter concerned an urgent application brought by the Trust to authorise life-saving medical treatment required by the Protected Party ’P’, a 57-year old woman who has a longstanding diagnosis of paranoid schizophrenia and is a lifelong heavy smoker.  P developed right-sided pneumothorax, commonly known as a collapsed lung, and was scheduled to undergo surgical intervention described as right-sided video assisted thorascopic bullectomy and pleurodesis, more commonly known as ‘keyhole surgery.’  This however did not go ahead due to P objecting to the procedure taking place on the arranged day.

The court firstly addressed the issue of P’s capacity in the context of the legal framework of MCA 2005.  It was specified that P was not merely assumed to lack capacity as a result of her diagnosis of paranoid schizophrenia but from the fact she suffers from active persecutory delusions, which impair her ability to understand and make decisions.  Evidence from P’s treating psychiatrist concluded that P did not have the necessary capacity to properly evaluate medical issues and the proposed treatment. P experienced unspecified anxiety, which involved a generalised belief that the doctors, instead of trying to help her, had hostile motivations.  P had also indicated that she feared the procedure may change her mental state and that she did not want the procedure to take place on certain dates of the month.  Furthermore, there was a history of P being unable to make a capacitous decision relating to gynaecological treatment in 2018.  In consideration of the evidence it was concluded that P did not have capacity to make a decision about what treatment for her lung was in her best interests.

Consideration was given to the course of suggested treatment and post-operative after care and any associated risks. In particular there was discussion relating to the extent of which the current Covid-19 pandemic had been factored into the risk analysis.  The most important factors for consideration as outlined by the court were as follows;

  • The urgency of the treatment, which was required in the next 24 hours.
  • A repetition of an earlier option would be draining P’s lungs and waiting for the lungs to heal, this would take much longer and expose P to greater risk of infection in addition to being clinically contra-indicated.
  • The Trust’s Covid-19 procedures were strict in terms of testing, isolating and screening therefore it was considered P’s risks of contracting the virus were significantly reduced, however the risk could not be eliminated completely.
  • It was determined P was unlikely to have brought the virus into the hospital due to testing negative recently and having been a patient for 2 weeks, however if P contracted the virus, she would be considered to be very high risk.

The court commented that whilst there are risks involved in any operation affecting the lungs, the evidence indicated the risk was as low as it could be and concluded the surgical intervention and proposed aftercare was in P’s best interest.  The application was granted and the Trust were commended for setting out the proposed course of action in a concise and focused manner in the urgent circumstances.

The court further commented that any judgment concerning the treatment of an incapacitated individual against their wishes, required public scrutiny.  This case, whilst not dealing with complex points of law or medicine per se, contributed to a wider body of knowledge available to treating clinicians as to the type of case that should be brought to court and the Trust’s decision to bring the application had been entirely consistent with the guidance on Serious Medical Treatment at [2020] EWCOP 2.

The full judgement can be read here

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