This matter concerned an urgent application by the NHS Trust for a personal welfare order under MCA 2005 relating to P’s medical treatment.
P had been diagnosed with cancer of the larynx on 07/09/2020. Although this had reached an advanced stage P was advised the cancer was able to be treated and cured with the correct treatment. P was offered two options; surgery or chemoradiotherapy (‘CRT’). P initially made a capacitous decision to undergo a course of CRT and signed a consent form in respect of the same.
P had for many years taken anti-depressant medication and had stopped taking this when her cancer diagnosis was made. P’s mental health subsequently deteriorated. She was unable to discuss the proposed treatment and was behaving irrationally to the point that she missed appointments and was unable to engage in a rational conversation regarding her condition or treatment.
P was admitted to hospital on 06/10/2020 following a decline in her health and it was identified the tumour was significantly obstructing her airway, with the risk P’s airway could become completely obstructed. P’s mental health had also deteriorated further and she had become increasingly withdrawn. On the 07/10/2020, P was assessed as lacking capacity to make decisions regarding her treatment as a result of her depression and chronic anxiety.
A CT scan on 28/10/2020 showed that the tumour had grown substantially since admission and there was a significant risk this could swell during treatment. P’s treating clinicians concluded the growing tumour risked an entire obstruction of P’s airway which could prove fatal and furthermore, if left untreated the cancer could spread to other parts of her body. As such, it was proposed the clinical team would need to attempt an endoscopic resection or debulking of the tumour, or if this was unsuccessful, a tracheostomy before the CRT could commence.
The Trust made an application for the following;
- A declaration that P lacked capacity to conduct the proceedings and to make decisions regarding proposed medical treatment and that it was lawful and in P’s best interests for the medical treatment to be provided under MCA 2005.
- An Order that the court gave consent on P’s behalf to the treatment being carried out.
- An Order authorising the deprivation of P’s liberty, to the extent of the arrangements of the treatment plan.
The court considered the two-stage test as set out in MCA 2005 s.2 (1) and s.3 (1). It was determined that P lacked capacity to conduct the proceedings and capacity to make a decision in relation to the medical treatment, as she was unable to use or weigh the evidence relevant to the decision at hand, as a result of her depression and chronic anxiety.
P’s best interests were also considered and the matter of Aintree v James [2013] applied, in that the starting point was a strong presumption that it was in P’s best interests to stay alive. The views of P’s family were also considered. They stated that P had a happy fulfilling life and most certainly did not want to die but had simply experienced a rapid deterioration in her mental health following her diagnosis, to the point she was unable to make a rational decision.
The court additionally considered the nature of the proposed treatment and concluded it was satisfied the treatment proposed was the least restrictive and therefore closest to what P’s wishes would be if she was capacitous. Importance was also given to the fact that P had previously consented to treatment when she was capacitous.
The application was granted and the court concluded it was lawful and in P’s best interests to be treated by way of CRT and to undergo the endoscopic resection/or a tracheostomy, in accordance with the treatment plan.
The full judgement can be read here
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