TS, Re (Pacemaker) [2021] EWCOP 41

This case related to applications made by Chesterfield Royal Hospital NHS Foundation Trust and Derbyshire Healthcare NHS Foundation Trust, who sought declarations as to;

  • P’s capacity to make decisions regarding the proposed fitting of a pacemaker and
  • that it was in P’s best interests for the pacemaker to be fitted.

The Applicants additionally sought a deprivation of liberty order authorising the use of minimal restraint or force, as may be required, to carry out the procedure.

P is an 81-year-old divorced gentleman with no relatives or friends involved in his care.  P has a delusional disorder, from which he has suffered since 2012   His condition deteriorated significantly in 2020, his delusions becoming centred around claims he had been persecuted by police officials and medical and local authorities. On 13/04/21, P was detained under section 3 of the MHA.

On 17/04/21, P experienced chest pain and was diagnosed with asymptomatic Mobitz type 2 heart block.  The standard medical treatment is for a pacemaker to be fitted and P originally agreed to the same.  He subsequently changed his mind, expressing paranoid thoughts, to the effect that his heart problem had been caused by the torture inflicted on him, perpetrated by the council and the police.  P stated they had followed and poisoned him and he did not want the pacemaker fitted until they desisted from these activities.

The applicants described that P was in a “Catch-22 situation” as, unless he received the antipsychotic medication, the delusional disorder would not improve and he would be unable to regain capacity, however he was unable to receive certain types of antipsychotic medication until the pacemaker was fitted, due to the heart block.  P had a background of ischaemic heart disease and, without the pacemaker, premature death was a possible outcome.

The application was ultimately granted and, in reaching the decision, Peel J considered the principal criteria that needed to be satisfied under MCA 2005, namely;

  • that P lacked capacity to make the relevant decision in relation to the pacemaker being fitted, and,
  • if he lacked capacity, that it was in his best interests to undergo the procedure.

The consensus between P’s clinicians and the Official Solicitor was that P lacked capacity to make this particular decision.  Peel J acceded to this point on the basis that P did not believe he had any mental health problem. The evidence demonstrated that P understood the nature and purpose of having a pacemaker and was able to retain that information, but was unable to weigh and balance the risk, his judgment being distorted by his delusional disorder.

Consideration was next given to P’s best interests.  Peel J emphasised this is a broad concept and relied on guidance from Aintree v James, Re A (A Child) and SS v London Borough of Richmond upon Thames to reinforce that, whilst the starting point is the strong presumption that it is in P’s best interests to stay alive, this is not an absolute.  The fact a party lacks capacity does not mean that his or her wishes and feelings to do not require consideration.

Considering matters as a whole, Peel J relied broadly on the following factors in P’s particular circumstances, in reaching the decision that the procedure was in his best interests;

  • P’s decision not to have the surgery was not an objection to the surgery itself, but rather the timing of the same. Historically there had been no objection by P, when he was capacitous, to undergoing heart surgery in 2016.
  • There was a probability of premature death, where there was a strong presumption in favour of prolonging life, which had not been displaced by any off the evidence submitted.
  • It was a standard procedure which carried a low risk. The substantial benefits outweighed the risks considered to P’s mental and physical health and P was in relatively good health for his age.
  • Finally, P was experiencing a reduced quality of life.  He did not want to remain in the unit he was on, believing he was surrounded by those who he considered to be in conspiracy against him.  If a pacemaker was fitted, he would be able to receive his antipsychotic medicine and there was every possibility he would be able to return home and his quality of life would swiftly improve.

The application was therefore granted and, additionally, the authorisation of the deprivation of liberty in order to administer the treatment.  The procedure was later carried out without incident.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Michelle Crangle here


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