Case Summary: NHS Foundation Trust v QZ [2017] EWCOP 11

Court of Protection case summary

19/07/2017

This case will be of interest to commissioners and providers involved in caring for vulnerable, incapacitated people who may be suffering from significant health conditions.

Case

NHS Foundation Trust v QZ [2017] EWCOP 11

Topics

  • Serious Medical Treatment – gynaecological investigations and potential oncological treatment;
  • Fine balance between physical health best interests and mental health best interests;
  • Scope of a reporting restriction order;
  • Weight to be attributed to wishes and feelings associated with delusional beliefs.

Practical Impact

Where there is a prospect of a vulnerable, incapacitated P suffering from a significant/serious health condition there should be no delay in an application to Court in the face of:

  • Finely balanced risks vs. benefits of proposed investigations/treatment;
  • Significant risks (to physical, mental or emotional wellbeing) associated with proposed investigation/treatment;
  • Prospect of P resisting requiring more than negligible force, coercion, restraint and deprivation of liberty.

Decision-makers should bear the following factors in mind when presenting their position:

  • Court will not necessarily determine that the view of an Independent Expert outweighs that of treating clinicians - Judge can prefer view of treating healthcare professional (with greater and longer-term knowledge of patient) over the view of an Independent Expert (even where the view of the Independent Expert is acknowledged to be careful and insightful);
  • A willingness to accept and acknowledge countervailing risks/factors to a proposed care plan by treating healthcare professionals can increase the Court's confidence in their professional objectivity and ultimately the weight attributed to their views.
  • "Balance Sheet" approach may not be appropriate in cases where it is unable to accommodate the "enormity of the conflicting principles which are conceptually divergent;" e.g. where:
    • Fine balance between risks to physical health and risks to mental health;
    • Forced intervention for physical health is likely to have significant detrimental impact on mental health;
    • Treatment for physical health will, in and of itself, cause deterioration in mental health.
  • Where there is a "real prospect" that risks may not materialise (or not materialise to the full extent possible), should avoid framing the balance to be struck in terms that are "too absolute."
  • You cannot disregard wishes and feelings simply because they are born of a mental disorder/impairment (or are irrational) BUT equally, it is not the case that such wishes and feelings will automatically be given the same weight as wishes and feelings born of capacitated person. The weight they are given will differ from case to case and will fall to be considered within the broader context of the evidence as a whole.
  • There is a powerful public interest in transparency in cases involving matters which engage fundamental issues of human freedom and autonomy – even where the NHS Trust is anonymised, it may be that the treating clinicians are named (as was the case here).

Summary

 

This case concerned QZ, who suffers from chronic, treatment-resistant schizophrenia and who was presenting with symptoms which may be caused by gynaecological cancer. Due to the nature of QZ's wishes, feelings and beliefs, it was accepted that any investigation and subsequent treatment would need to be forced against her will and that this, coupled with the nature of the investigations and treatment themselves, was likely to cause a significant deterioration in her mental health. There was a difference of opinion about the prospect of QZ's mental health recovering and the ability of QZ to re-develop a trusting relationship with professionals following treatment between the treating clinicians (considered there to be a real prospect of recovery) and the independent expert psychiatrist (considered there was a real risk of significant deterioration of a prolonged nature and irrevocable breakdown in relationships).

The key balance for the Judge was the possibility (because it was by no means certain that QZ had terminal cancer) of a significant risk of loss of life against the inevitable serious deterioration in mental health.

Court reminded itself that in Serious Medical Treatment cases, the best interest determination is about whether to give treatment (not about whether to withdraw/withhold treatment); if it is not in P's best interests to give treatment it follows that it is lawful to withhold or withdraw it.

At the conclusion of the evidence, the Official Solicitor (on behalf of QZ) resisted the Trust's application to authorise forced investigation and subsequent treatment (as indicated by the investigation outcomes).

Judge concluded that permitting the treatment here was not fighting QZ, but fighting on her behalf – he authorised the treatment.

Background

Mr Justice Hayden – Hearing Date 06.06.17

QZ is a lady in her 60s suffering from chronic, treatment-resistant paranoid schizophrenia who lives in a residential care home. Her illness manifests with paranoid behaviour, disordered thought-patterns and auditory hallucinations; the most pervasive being that she is a young Roman Catholic virgin. She's been engaged with mental health services since she was 16years old, with historic periods of inpatient admission to hospital.

Whilst QZ has 4 brothers, she does not believe she is related to them and doesn’t allow them to be involved in her life in a meaningful way; she was briefly married when she was 18years old but there is no contact with her ex-husband.

Suffering from post-menopausal bleeding for 1year – possible causes are:

  • Atrophic vaginitis (inflammation of the vagina) = 80%;
  • Other benign pathology = 10%;
  • Gynaecological cancer = 10%:
    • Endometrium (most common);
    • Cervix;
    • Vulva; or
    • Vagina.

QZ is secretive about her symptoms (tries to hide her underwear) and as she can toilet/personal hygiene independently, her carers do not have direct knowledge of the extent of her symptoms.

In August 2016 QZ underwent a trans-abdominal ultrasound which identified a thickening of the endometrium – consistent with potential cancer.

Mr Abdul (Consultant Gynaecological Oncologist):

  • QZ's symptoms meant a benign cause of the bleeding was less likely;
  • 30-50% prospect QZ was suffering from cancer;
  • Prognosis depended upon the stage of the cancer's progression at the point of diagnosis but overall endometrial cancers had 79-82% survival at 5 years;
  • Where patients have refused surgical treatment, survival range is a few months to a few years;
  • With treatment, there is a good prospect of success to ensure a longer life – subject to a number of variables:
    • Stage of cancer not being too advanced at the point of diagnosis;
    • Endometrial as opposed to cervical or vulval cancer;
    • There are no other health complications.

Usual treatment pathway:

  • 2-week wait list for trans-abdominal ultrasound – completed;
  • Hysteroscopy (telescopic examination of the cervix and womb);
  • Endometrial biopsy (where trans-abdominal ultrasound and hysteroscopy normal and endometrial lining >4mm);
  • If positive, laparoscopic hysterectomy;
  • Often followed by daily radiotherapy for some weeks.

QZ's previous and current expressed wishes:

  • Agreed to and co-operated with trans-abdominal ultrasound;
  • Initially agreed to hysteroscopy, but changed her mind;
  • Agreed to investigations under sedation, but changed her mind and left the hospital;
  • Delusional belief that she is being poisoned by carers/doctors and is at risk of being raped by them;
  • Believes she has been sexually abused/raped in the past;
  • Does not want her brother to be involved in her care in any way;
  • Any involvement of her brother to attempt to encourage compliance with investigations would be viewed by QZ as a breach of confidentiality and reinforce her belief that healthcare professionals cannot be trusted;
  • Will not agree to any further investigations or treatment – will require coercion and proportionate force.

Proposed care plan:

  • Hysteroscopy under general anaesthetic with endometrial biopsy if indicated;
  • If positive, admission to hospital for laparoscopic hysterectomy under general anaesthetic;
  • Post-operative treatment but daily radiotherapy for up to 5 weeks is not proposed for QZ;
  • Use of force and deprivation of liberty to:
    • Remove from residential care home;
    • Transfer to and from hospital;
    • Remain in hospital for treatment and immediate post-operative recovery.

Relevant history:

  • QZ's belief that she's been raped/sexually abused historically and is at risk of rape from carers/doctors directly collides with proposed treatment;
  • Historically, where QZ has believed that a placement has breached her trust, it resulted in an immediate and rapid deterioration in therapeutic relationships with staff – non-compliance with medication and deterioration in mental state.

Dr Rebecca O'Donovan (Independent Expert – Consultant Forensic Psychiatrist)

  • QZ lacks capacity to make decisions about the potential diagnosis and treatment:
    • Is aware that she is bleeding;
    • Appears to understand theoretical concept that she may have cancer; but
    • Delusional belief structure prevents her from internalising it – i.e. she believes the results from the tests belong to someone else.
  • QZ decompensates when her perceived autonomy is taken away from her;
  • Consequences of enforcing the care plan against QZ's wishes:
    • Almost certain risk that her mental state will deteriorate in a manner which was likely to be serious and potentially prolonged;
    • The quality of QZ's life in terms of stability and emotional security would be very reduced;
    • Risk of QZ's delusional paranoia overwhelming her;
  • QZ has developed a "rational coping strategy" to manage her delusional beliefs – i.e. although QZ believes her medication is poisoning her, she will take it without fuss or trouble and although QZ insults her treating psychiatrist, she complies with his advice; this would be lost if QZ's delusional paranoia overwhelms her;
  • Balance is:
    • Potentially shorter life of a quality acceptable to QZ (acknowledging that if QZ does have cancer, the end of her life has potential to be painful and distressing) vs.
    • Longer life but is traumatised by her negative perception of the treatment experience and is tormented by the symptoms of her mental health for some time to come.

QZ's treating Consultant Psychiatrist, Dr Horton, felt she would be able to regain trust and learn again in the future to work effectively with professionals. QZ had been able to do so in the past, which was a good prognostic indicator for the future. Did agree that a significant mental health deterioration was inevitable.

Acute hospital Trust acknowledged that the proposed care plan would be of no real utility if either:

  • There was no cancer; or
  • Cancer was so aggressive and developed that a hysterectomy would serve no purpose.

Official Solicitor resisted the application as it was not clear that the proposed treatment is in QZ's best interests because of the:

  • Significant risks of a deterioration in QZ's mental health associated with the proposed treatment;
  • Potential impact of the proposed care plan on QZ's current residential placement;
  • 50% prospect (at least) that there is no cancer and the procedures would be undertaken for no purpose.

In authorising the treatment, the key factors the Judge weighed in his decision:

  • There was a real prospect (based on the evidence of the treating clinicians) that the mental distress QZ would suffer would be transitory;
  • QZ has the prospect of many years of life ahead of her;
  • Proposed care plan is of limited intrusion (objectively);
  • QZ has shown ability to forge the bonds of trust with professionals;
  • QZ has developed the resilience to "fight back at some point in the future";
  • QZ has a level of privacy, independence and dignity which are as much a part of her as her paranoid and delusional beliefs;
  • QZ's paranoid and delusional beliefs must not be permitted to eclipse the other facets of her personality.
Key Findings
  • Judge was "profoundly" troubled that the application was 12 months post-symptoms (in context of such symptoms usually being investigated within a fortnight) – no satisfactory explanation for the delay.
  • Whilst Judge applauded the careful and insightful assessment by Dr O'Donovan, he considered that Dr Horton's greater and long-term knowledge of QZ was better placed to evaluate her resilience to the proposed treatment.
  • Dr Horton's preparedness to accept significant risks associated with the treatment proposal reinforced his overall professional objectivity – which led the Judge to be more confident in his evaluation.
  • Key elements of applicable law:
    • Welfare in the widest sense – not just medical, but social and psychological;
    • Consider the nature of the treatment, what it involves, prospects of success, potential outcomes/consequences of the treatment;
    • Judge to put themselves in the place of P and ask what his/her attitude to the treatment is (or likely to be);
    • Consult others interested in P's welfare – in particular, on their view of what P's wishes/attitude would be;
    • Decision is about whether to give treatment; not about whether to withhold/withdraw treatment;
  • Where wishes, feelings, beliefs and values are of such long-standing that they become inextricably a facet of who the person is, they will not necessarily be outweighed (or attract very little weight) simply because they are intimately connected with the case of P's incapacity (or, put alternatively, they are born of the mental impairment/disorder) BUT wishes and feelings of those suffering from delusional beliefs are not automatically given the same weight as beliefs articulated by someone who is capable of objective reasoning and analysis;
  • RRO was extended to include the identity of the applicant NHS Trust because in the care home QZ lives in, there are regular meetings where residents are encouraged to read and share articles from the newspapers and there is a distinct possibility that other residents might recognise QZ.

 

This case summary was written by Hannah Taylor, Senior Associate.

Please contact Hannah Taylor if you wish to discuss this case or any related topics further. 

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.

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