United Lincolnshire Hospitals NHS Foundation Trust v Q [2020] EWCOP 27

This was an application by a hospital trust firstly for a declaration as to the capacity of Q to conduct these proceedings and to make decisions about her dental treatment and, secondly, for a best interests decision about how the dental treatment should proceed.

Q is a 57-year-old woman with profound and life long learning disabilities together with epilepsy. She also has impaired eyesight and is registered blind. She has mobility difficulties which require the use of a wheelchair. She is highly resistant to changes in the very rigid structure of her daily life, and she can reject attempts to provide her with personal care. For many years, she has resisted any proper dental hygiene.

In March 2018, concerns were raised that Q was experiencing dental pain. On 29 May 2018, a dentist from the community dental service reported that Q’s gums were red and swollen with visible recession and bone loss. On 9 November 2018, Q was referred to the maxillo-facial surgeons at the local hospital for a full dental clearance under general anaesthetic, but it was cancelled on the day of the operation as Q had a prolonged seizure of around six minutes. Best interests meetings were held on 20 November 2019 and 11 February 2020 when it was agreed that it would be in Q’s best interests to undergo the proposed dental surgery and to receive intramuscular sedation to facilitate her transfer to and from the hospital.

Mrs Justice Gwynneth Knowles considered the wealth of evidence concerning Q’s capacity and concluded that “I am satisfied, on the balance of probabilities, that Q lacks capacity both to conduct these proceedings and to make decisions about her dental treatment. It is plainly evident that Q has no ability to understand the most basic of discussions about oral hygiene or dental treatment.”

With regard to best interests, the judge considered the available treatment options for Q’s dental condition, including the risks and benefits associated with each of them, and was satisfied that the proposed plan for covert administration of a sedative and dental surgery is in Q’s best interests. Untreated, this is likely to increase her dental pain, her salivation and the refusal of food which would in turn put Q at risk of malnutrition, dehydration and increased seizures since her epilepsy medication is administered with her food.

Mrs Justice Gwynneth Knowles summed up the issues as follows:

“Q’s recovery is likely to be both painful and upsetting for her because she lacks the understanding to recognise what has happened to her and why it has happened. However, this will be transient discomfort after which she should be able to enjoy her food and derive pleasure from eating without pain. That transient discomfort has also to be balanced against the significant risk of, if untreated, Q experiencing worsening pain where she refuses food, becomes malnourished, and is at risk of developing sepsis. In my view, the course of action proposed by the applicant trust is necessary and the least restrictive possible course in order to carry out the dental treatment that Q urgently needs and has needed for some time on the evidence before me.”

The full judgement can be read here

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