Case Summary: Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35

Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35 (heard by the Honourable Mr Justice Hayden, Vice President of the Court of Protection)

•  Applications for serious medical treatment
• Capacity
• Best Interests
• Mental Capacity Act 2005

Healthcare providers, commissioners and practitioners should be mindful that:

• The Court expects its guidance on Serious Medical Treatment at [2020] EWCOP 2 to be followed.
• This guidance clearly indicates that if, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or
(b) there is a difference of medical opinion, or
(c) a lack of agreement as to a proposed course of action from those with an interest in the person's welfare, or
(d) there is a potential conflict of interest on the part of those involved in the decision-making process,

then it is highly probable that an application to the Court of Protection is appropriate. In such an event, consideration must always be given as to whether an application to the Court of Protection is required. Where any of the matters listed at (a) – (d) above arise and the decision relates to the provision of life-sustaining treatment, the guidance indicates that an application to the Court of Protection must be made.

• As part of a Serious Medical Treatment application, it is important to set out in written evidence the treatment/procedure which is proposed in a concise and focused manner. In this case, the consultant cardio-thoracic anaesthetist clearly described the proposed procedure step-by-step in his statement. The relevant care plans should also be produced in detailed, clear and patient focused terms.
• The COVID-19 pandemic should be factored into any risk analysis which forms part of the overall risk matrix of the proposed treatment/procedure. This includes consideration of issues such as the likelihood of P contracting COVID-19, testing, isolation and screening procedures in effect, timeframes for surgical interventions, and PPE.

An urgent application was brought by the Trust to authorise a proposed right-sided video-assisted thorascopic bullectomy and pleurodesis after KD had developed a collapsed right lung.

My Justice Hayden determined that KD lacked capacity to make a decision about what treatment for her lungs was in her best interests, as a result of the mental impairment caused by her paranoid schizophrenia. He considered that the treatment proposed by the Trust was in KD’s best interests, emphasising that it was urgently required to save her life.

Mr Justice Hayden commended the Trust for providing detailed, clear and focused care plans to inform the Court about the proposed treatment. He also made clear that the Trust was right to bring KD’s case to the Court of Protection and that it had acted in consistently with the guidance on Serious Medical Treatment applications set out in [2020] EWCOP 2.

It was confirmed that the COVID-19 pandemic should be factored into any risk analysis which forms part of the overall risk matrix of the proposed treatment/procedure. The Trust was commended for considering issues such as the likelihood of P contracting COVID-19, testing, isolation and screening procedures in effect, timeframes for surgical interventions, and the PPE which would be worn by treating clinicians.

Mr Justice Hayden clarified that this case contributes to a wider body of knowledge available to treating clinicians as to the type of serious medical treatment case that should be brought to the Court of Protection.

This urgent application was brought by the Trust to authorise a proposed right-sided video-assisted thorascopic bullectomy and pleurodesis after KD had developed a collapsed lung. KD’s right lung had been described as totally collapsed. The application was heard on 2 July 2020.

The Trust proposed that KD urgently undergo this surgical intervention. It had been due to take place on 30 June 2020 but it did not go ahead because KD objected to the procedure. The Trust’s consultant cardio-thoracic anaesthetist indicated that the surgery was very straightforward and a very common procedure; it was reported that the operation itself takes around 15 to 20 minutes.

KD’s community psychiatrist indicated that KD did not have the capacity to properly evaluate and weigh the medical issues around the proposed treatment in this case. The primary impediment, he considered, was KD's unspecified anxiety which involved a generalised belief that rather than being there to help her, her doctors may be motivated by some more hostile incentive. KD had also indicated to staff that she did not want to undergo the surgery because she felt it might change her mental state; she had also expressed anxiety about undergoing the procedure on particular dates in the month.

Mr Justice Hayden had little difficulty in coming to the conclusion that KD did not have capacity to make a decision about what treatment for her lung was in her best interests, as a result of the mental impairment caused by her paranoid schizophrenia. The Judge determined that the treatment proposed by the Trust was in KD’s best interests. He commended the Trust for illuminating the proposed treatment in a concise and focused manner.

There was discussion during the hearing as to the extent to which the current COVID-19 pandemic had been factored into the Trust’s risk analysis for the proposed operation. It was clear from the evidence that it had been and the Judge endorsed the Trust’s care plan. The Judge also highlighted a number of important factors:

• KD was unlikely to have brought the COVID-19 virus into the hospital as she was recently tested negative and had been in hospital for 2 weeks prior to the operation. However, it was noted that if KD did contract the COVID-19 virus she would be considered to be very high risk;
• The Trust had confirmed that the hospital procedures were so strict in terms of testing, isolating and screening for the area of the hospital where KD was situated, that the risks of contracting the virus were significantly reduced, albeit they couldn’t be eliminated altogether;
• A repetition of an earlier option of draining KD's lungs and waiting for her lungs to heal themselves was noted by the Trust as likely to take a great deal longer, therefore exposing KD to a greater risk of infection, as well as being clinically contra-indicated;
• Due to the fact that KD, at the time of the hearing, had no drains from her chest, the surgery needed to happen urgently and was contemplated in the next 24 hours following the hearing;
• It was proposed that the doctors would wear full protective equipment throughout the operation.

• It was emphasised that the treatment which was proposed was essential to save KD’s life; she would die without it. The Judge found that the operation was urgently required and concluded that the surgical intervention and proposed aftercare was in KD's best interests.
• The Judge agreed with the Trust's decision to bring KD’s case to the Court; he indicated that the Trust acted entirely consistently with the guidance on Serious Medical Treatment at [2020] EWCOP 2.
• Any judgement which involves providing treatment to an incapacitated individual against their expressed wishes requires proper public scrutiny.
• This case contributes to a wider body of knowledge available to treating clinicians as to the type of case that should be brought to the Court of Protection.
• The COVID-19 pandemic should be factored into any risk analysis which forms part of the overall risk matrix of the proposed treatment/procedure. This includes consideration of issues such as the likelihood of P contracting COVID-19, testing, isolation and screening procedures in effect, timeframes for surgical interventions, and PPE.