NHS Trust v K & Ors [2012] EWCOP 2922

Case No COP1218344

IN THE COURT OF PROTECTION

Venue Royal Courts of Justice

Date Monday, 15 th October 2012

Before

MR JUSTICE HOLMAN

Between

NHS TrustClaimant

K & OrsDefendant

B E T W E E N:

A NHS TRUST Applicant

- and -

(1) K

(2) ANOTHER FOUNDATION TRUST Respondents

Transcribed by BEVERLEY F. NUNNERY & CO

Official Shorthand Writers and Tape Transcribers

Quality House, Quality Court, Chancery Lane, London WC2A 1HP

Tel: 020 7831 5627 Fax: 020 7831 7737

info@beverleynunnery.com

MR C. UTLEY (instructed by the Legal Department of the NHS Trust) appeared on behalf of the Applicant.

MS A. STREET (instructed by the Official Solicitor) appeared on behalf of the First Respondent.

MR C. UTLEY (instructed by Kennedys Law LLP) appeared on behalf of the Second Respondent.

J U D G M E N T

Overview and the issue

[1]A lady has cancer of the uterus. She could be cured by a potentially life-saving operation. However, because of other co-morbidities and other factors there is a considerable risk that she could die during the operation or in the post-operative recovery period. She herself lacks the capacity to make an informed decision, but she denies that she has cancer at all and opposes and is resistant to the operation. The medical team at the hospital consider that she would benefit from the operation and would like to perform it. The lady's three adult sons all strongly desire that she should have the operation and feel that the potential benefit outweighs the risk. The Official Solicitor, who acts as her litigation friend, considers, in a phrase, that it is too risky. The question for the court is whether, balancing all the relevant factors, it is in her overall best interests to have the operation or not.

The evidence

[2]I have read and heard oral evidence from Mr. J, the consultant gynaecological oncologist who would perform the operation; Dr VB, the consultant anaesthetist who would perform the anaesthesia; Dr W, the consultant in anaesthesia and intensive care medicine (the intensivist) who would be in charge of post-operative care in the intensive care unit; and Professor W, the professor of psychological medicine and honorary consultant, who would be in charge of the patient's psychological wellbeing while she is at the hospital. I have also read and heard oral evidence from Dr. P, the consultant psychiatrist who is responsible for the outreach care of the patient in the community, and from Dr. AB, the consultant in general adult psychiatry who is responsible for her care when, as quite frequently happens, she is "sectioned" or admitted to a psychiatric hospital for treatment. The names of all the above doctors are anonymised in order to preserve the anonymity of the patient and her family and their whereabouts, and the location of the treating hospitals.

[3]I have in addition heard expert evidence from Mr. Robert Anderson, a consultant gynaecologist based in Bristol, and Dr. Dominic Bell, a consultant in intensive care/anaesthesia based in Leeds. These two doctors are described as expert witnesses as they are not, and will not be, the treating doctors. Indeed, neither of them has ever met the patient. I have no reason to suppose that either of them is any more, nor, of course, any less, eminent in his field than his treating counterparts. All the medical evidence was of high calibre, and carefully and sympathetically considered and given, and there is no issue in the present case as to the competence and expertise in their respective specialities of any of the medical witnesses.

[4]I also heard during the course of the hearing from all three sons from the well of the court, and the eldest son gave oral evidence as a spokesman for them all. I record at once that each of the sons is a mature adult of considerable intelligence, with an acute appreciation of the issues and risks in this case, and motivated only by love and concern for his mother and a desire to do the very best for her. The patient lives with her middle son and his wife, and the whole family live in close proximity to each other. All three sons are therefore regularly involved in the care of their mother and see her very frequently.

The history, diagnosis and prognosis

[5]There is considerable consensus as to the core facts, including the medical facts, and I propose therefore to narrate them with little reference to the precise sources in the evidence, and incorporating, where necessary, any judicial findings as to the facts.

(i) The lack of capacity

[6]The patient, Mrs. K, is now aged 61. She was divorced many years ago and her former husband has no involvement in her life or this case. She is of Pakistani descent and she herself came to live in England around the age of 16. She speaks English fluently and well. She has the three sons to whom I have already referred, and lives with the middle son and his wife. For about 40 years she has suffered from a psychotic disorder and a form of chronic schizophrenia for which she receives regular anti-psychotic medication. Even quite recently, she has had to spend quite long periods as a psychiatric in-patient under the care of Dr. AB. Currently she is living at home. Her son and daughter-in-law are out at work all day and she is able to feed and care for herself, including going for short trips to the shops, although she also receives considerable psychiatric outreach support at home under the direction of Dr. P.

[7]Her delusions include that she is still aged about 20 and that she has a boyfriend with whom she has, or would like to have, a sexual relationship. She has been informed that she suffers from cancer in the lining of her uterus. The original alerting symptom, and one which remains distressingly apparent to her family, is vaginal bleeding. She herself, however, utterly denies that she does bleed and utterly denies that she has cancer or that there is anything wrong with her vaginal and reproductive area at all. She says that the doctors have made it all up under the influence of bad Pakistani men in retribution for her affair with her boyfriend. This is all completely delusional but the same themes are repeated to all who talk to her, including her sons.

[8]All the engaged psychiatrists, the family and the Official Solicitor all agree that in these circumstances she lacks capacity, due to her chronic mental illness, to make informed decisions about major medical treatment. She is unable to make a decision for herself in relation to the treatment within the meaning and scope of sections 2 and 3 of the Mental Capacity Act 2005 (the Act). There is no prospect of her having capacity (as section 4(3) of the Act requires me to consider) at any time in the foreseeable future or during the period when it remains beneficial to her to have the operation (viz. before the cancer may have spread more widely into her body).

[9]The Court of Protection, that is I, must make the decision for her in her best interests. I have carefully considered and take into account all the relevant requirements of section 4 of the Mental Capacity Act 2005. The Official Solicitor's representative has visited Mrs. K and discussed the case and the proposed operation with her, as have her sons and many others, so as to permit her to participate as fully as possible in the decision affecting her as required by section 4(4) of the Act. I have taken into account very fully throughout the hearing the views of the family and other professionals engaged in caring for her welfare as required by section 4(7) of the Act.

[10]Her stated wish and feeling (as referred to in section 4(6)(a) of the Act) is, on every occasion the matter is raised with her, that she does not have cancer, that there is nothing wrong with her and (not surprisingly on that basis) that she does not wish to have the operation. Her sons firmly say, however, that she has the normal human desire, instinct and motivation to survive and therefore that belief and value would be likely to influence her decision if only she had capacity (see section 4(6)(b) of the Act).

[11]There is no question whatsoever of anyone involved in this case, including myself, being "motivated by a desire to bring about [her] death" as referred to in section 4(5) of the Act. Everyone in this case is strongly motivated by a desire to prolong and maximise her life. (ii). The other co-morbidities

[12]As well as her psychiatric ill health, Mrs. K unfortunately suffers a number of other very significant physical co-morbidities. She is, in medical jargon, super obese. She weighs about 133 kilograms or just over 20 stone, and her body mass index is almost 52. A complication of the obesity is diabetes, for which she requires regular insulin and other medication with which unfortunately she does not always reliably comply. She also has quite significant asthma which is controlled by a nebuliser. She has low mobility, although her sons say that she can walk, slowly, the 200 yards or so to the local shop and then back home again. She takes rests if, rarely, she climbs stairs. In the words of Dr. Bell, at para.1.8 of his report:

"Her background general health status represents a constant risk to life."

[13]An ECG done during July 2012 demonstrates a prolonged QT interval. It is not currently clear whether that is indicative of underlying ischaemic heart disease or is a (known) complication of some of her anti-psychotic medication. It can, however, trigger sudden death and adds yet further to the risk of post-operative complications. It also makes the use of physical restraint unwise, since the agitation which is likely to result in the patient, if restrained, could cause an adrenalin surge which could trigger sudden death in view of the existing dysrhythmia. For this and other reasons, it was common ground by the end of the hearing that physical restraint could not be used (and would not be sanctioned by the court) at any stage prior to the operation taking place. If, after the operation, she was later to become agitated, then I could not preclude the use of the least physical restraint necessary for the safety of herself or others. (iii). The cancer and surgery

[14]It is beyond doubt that Mrs. K has had Grade 2 endometrioid endometrial cancer (i.e. cancer in the tissue which lines the inside of the uterus) as polyps were removed during a hysteroscopy in late February 2012 and the histopathology report reported cancer in them. It is just theoretically possible that all the cancer was removed during the hysteroscopy, but this is so unlikely that all agree that she must be assumed still to have the cancer as, indeed, she still suffers the vaginal bleeding.

[15]As Mr. Anderson wrote in paragraph 3.6 of his report:

"Cancer is an evolving condition with usually an inexorable progression of spread. What are entirely unpredictable are the speed with which that progression occurs and the pattern of spread …"

. The risk and likelihood is that if the cancer is not removed or otherwise treated it will be travel to the lymph nodes and slowly invade the body. CT scans performed on 28 March and again on 21 September 2012 indicate enlarged lymph nodes on both sides of the pelvis. However, these show little change between the two scans and so the progress of the disease is currently reported as "stable" with no evidence of disease in other parts of the body or organs. This encouraging information may point both ways . On the one hand, it indicates that if the uterus, and any cancer within it, is surgically removed by hysterectomy the overall prognosis is good, since the cancer may not yet have spread. On the other hand, if the spread of uterine cancer is slow then there is a significant possibility that she will die from her other co-morbidities before the cancer becomes significant, so hysterectomy may, poignantly, prove pointless in her case.

[16]If the cancer is not treated and unless she dies earlier from the other co-morbidities, then it is likely that she will die from the cancer. Further, it would be likely to develop into forms of pelvic cancer in the kidneys, bowel and/or bladder. Mr. Anderson said that these can cause horrible symptoms of incontinence and she could endure a year of unpleasant symptoms and a protracted period of pain and indignity before death, although Mr. Anderson did also emphasise that pain can nowadays be well controlled. The timetable is very speculative.

[17]Both gynaecologists were very clear that to any woman of Mrs. K's age and cancerous condition, but with full capacity and without the co-morbidities, they would strongly and unhesitatingly advise a hysterectomy and bilateral salpingo-oophorectomy and lymphnodectomy, i.e. removal of the uterus, the fallopian tubes and ovaries, and the lymph nodes. But for the co-morbidities, the surgery could probably be achieved laparoscopically (keyhole). If done before the cancer had spread it can effect a permanent cure. The risk of perioperative mortality in a lady aged about 60, but otherwise healthy and of normal weight, is around 1 in 1000.

[18]It is crystal clear that because of her size and weight, and the other co-morbidities, the surgery would, in the case of Mrs. K, be far more technically difficult and the operation (including the anaesthesia) far more risky. Removal of the uterus, ovaries and fallopian tubes remains relatively straightforward, although it would probably require a low abdominal transverse incision probably 20 centimetres or more long. But removal of the lymph nodes becomes much harder and carries much higher risk of haemorrhage and other complications. Even if the surgeon was able to embark on laparoscopy, the anaesthetic complications in a lady of this size and weight and with the other co-morbidities might rapidly require that her body was tilted upwards from a tilted head down position to a horizontal position, making further laparoscopy impossible. In short, the surgeon might suddenly have to switch from discreet keyhole to more invasive abdominal incision surgery during the course of the operation.

[19]Despite these difficulties, both gynaecologists made the point that there is often an association between obesity, diabetes and cancer of the uterus, and so it remains common to perform hysterectomies on ladies who are obese, diabetic and may have other co-morbidities. The overall view of Mr. J is that, from his perspective as the surgeon, the operation (even if there is no lymphnodectomy) remains well worth doing. It is one that he would advise to another lady who was in the same position as Mrs. K but without the mental health problems and lack of capacity. It is one which he would like to perform upon Mrs. K because he feels (very responsibly) that she should not be denied the same treatment as any other lady similarly placed, simply because of her lack of capacity.

[20]There has to be a reservation in relation to lymphnodectomy. As already stated, this is the most technically difficult part of the operation, particularly in so obese a patient. It carries the highest risk of haemorrhage and other complications and its utility is more debatable . If every lymph node which has been at all affected by the spreading cancer can be successfully excised, then the cancer has been removed. But if even one cancerous lymph node remains, or even if cancerous molecules remain, the likelihood is that the cancer will still spread. On one view, therefore, the benefit of removing any lymph nodes is less one of therapy and more one of diagnosis to test whether the removed lymph nodes have or have not been invaded by the cancer. (iv). Alternative treatments

[21]There are possible alternative treatments to surgery. A patient might be successfully treated by regular external radiotherapy over a period of several weeks. This option is not available in this case because there is no prospect that Mrs. K would regularly be sufficiently compliant. Mr. Anderson did raise the possibility of intra-uterine brachytherapy. This involves delivery of a very high dose of radiation through an instrument inserted vaginally on probably a single occasion. There would be no incisions, no risk of haemorrhage and no actual removal of any organs. A general anaesthetic would still be required but of much shorter duration. It would, in short, be a less invasive and less risky procedure but also probably less efficacious. As almost all similarly affected woman elect to have a hysterectomy, there is little experience of brachytherapy to treat this particular form of cancer and no modern data as to its efficacy.

[22]Mr. Anderson estimated that the success rate of hysterectomy in providing a cure could be 80 to 90%. He speculated that the success rate of brachytherapy might be about 80% of that, i.e. about 80% of 80 to 90%. He concluded that from a physical point of view there is no question that surgical hysterectomy is preferable to brachytherapy and in Mrs. K's overall best interests.

(v) The risk of mortality or other major complications

[23]The treating anaesthetist, Dr. VB, said that obesity, asthma and diabetes are all significant co-morbidities which add to the risk of intra-operative mortality but would not, in her opinion, contraindicate surgery. To her, and to all the relevant doctors, the risk of death or serious complications is at its highest in the post-operative period whilst she is recovering in the intensive care unit. There is a high risk of post-operative complications even if she herself is compliant and does what is required to her. These include cardiovascular immobility resulting in arrhythmia, heart attack or death; respiratory complications including chest infection; and metabolic complications related to her diabetes.

[24]Dr. W, the intensivist who would be responsible for her post-operative care, highlighted the risks of post-operative infection; ventilator associated pneumonia (VAP); deep vein thrombosis and pulmonary embolism; cardiovascular instability with a reduction in cardiac output and low blood pressure; systemic inflammatory response syndrome or sepsis, of which diabetics have an increased risk; and pressure sores which can be a focus of infection. As Dr. W said, these risks are separate but may be cumulative or, if she is lucky, none may happen. Of them all, the most likely will be problems with breathing which are almost certainly going to happen. Dr. W estimated that there is a 20-25% risk of VAP in a patient with these co-morbidities after this major abdominal operation, and there is a high mortality associated with VAP. Of greatest concern to Dr. W is the lack of respiratory reserve in this patient, indicated by the fact that she gets short of breath after little exertion.

[25]All these risks would be compounded and magnified if Mrs. K was non-compliant in the recovery period. She would need to co-operate with physiotherapy, to breathe as hard as she could when asked, to sit up and walk about as soon as possible, and of course not to pull out the mask and many lines to which she would initially be connected. Dr. VB said that the main difficulty in this case is not the co-morbidities "which we can deal with", but the lack of consent and, if it occurs, lack of post-operative compliance.

[26]Dr. Bell gave evidence to similar effect, stressing in particular the lack of respiratory reserve. He, too, said that his principal area of concern is post-operative compliance. The problems arise in the immediate post-operative period when the patient has high oxygen requirements and has to breathe for herself. The emphasis upon the problem of post-operative compliance of course raises the highly speculative question of whether, if the operation does take place without her consent, the patient would in the post-operative recovery period be compliant and would strive to do what was required of her. Professor W also pointed out that in her case there is a risk of delirium, the control of which would require sedation and so prevent voluntary compliance.

[27]The risk of non-compliance is, frankly, speculative. I can only record that the psychiatrists who know her, Dr. AB and Dr. P, both consider that she would not show resistance. Dr. AB said he does not believe she would actively hinder people who are helping her. She has a drive to stay alive but he would be concerned as to her motivation. Dr. P said that she accepts things being done to her but does not do anything herself about looking after herself, and Dr. P is concerned about her motivation to do what is required to start breathing again.

[28]Her sons know her best. The eldest son, Mr. MM, said in evidence that they feel that the risk of non-compliance post-operatively has been overstated. Her instinct for self-preservation is as acute as that in any normal person. He said that the biggest challenge is to get her to the operating table but if the operation does take place the sons do believe that she will be able to be encouraged to do post-operatively what she has to do.

[29]The most controversial area of the case and, indeed, the one that has led the Official Solicitor, in his carefully considered opinion, to diverge from the applicant Trust, is overall assessment of the degree of these risks. Mr. Anderson hazarded a figure. He said that his overall estimate of the risk of perioperative mortality (i.e. during or in the post-operative recovery period) is around 5%. I understand that to mean that he estimates that if 100 ladies in the identical circumstances of Mrs. K were similarly operated upon, about 5 would die. This contrasts very adversely with the statistic of about 1 in 1,000 in the case of ladies of similar age but otherwise healthy and of normal weight.

[30]Dr. VB, the anaesthetist, preferred not to use a figure or percentage but said that there is a very high risk that they would not be able to control the complications and the patient would die. When asked about Mr. Anderson's figure of 5%, she said that that is a very high risk figure, and my understanding is that, although she did not wish to use a figure, Dr. VB's overall assessment is that there is a risk broadly of that order.

[31]Dr. W, the intensivist, similarly preferred not to use figures or percentages, save that she did suggest a 20-25% risk of VAP which, if it does occur, carries a high risk of mortality. She said that even if Mrs. K was of full capacity and wanted the operation (and could be expected, therefore, to be fully compliant post-operatively) she would be telling the patient, her family and the other doctors that there is a real risk that she would not survive the process because of the co-morbidities.

[32]The highest risk of mortality was forecast by Dr. Bell. At paragraph 2.38 of his written report, now at bundle page D103, he wrote:

"… Mrs. K would have to overcome a series of hurdles to survive a major surgical procedure such as that proposed and the combination of severe underlying co-morbidity and predictable non-compliance with the multi-faceted aspects of care necessary to optimise her condition would, on a balance of probability, translate into her death via a range of mechanisms at different stages of the patient pathway."

At paragraph 3.6, now at bundle page D104, Dr. Bell wrote:

"Whilst possible that she could survive induction of anaesthesia and the surgical process, the combination of co-morbidity, consequences of surgery and anaesthesia, and non-compliance with optimal care in the post-operative period is likely to translate into the patient's death despite escalation of support within a critical care environment."

[33]During his oral evidence Dr. Bell made clear that those paragraphs, and that prediction, assumed that the operation included a lymphnodectomy which carries the greatest risk of haemorrhage and the need for drains and transfusion. If the operation was restricted to hysterectomy and removal of the ovaries and fallopian tubes there would be some reduction of risk. The prediction is also on the basis that she is non-compliant post-operatively, particularly in the need to breathe hard. If, as her sons believe, she would do what was required of her and strive to survive, then there would be some reduction in the risk. Dr. Bell clearly considers, however, that the overall risk of mortality at some stage in the process remains around 40-50%, a figure which appropriately greatly concerned and impacted upon the final submissions of the Official Solicitor. (vi). Longer term risk to psychiatric health

[34]Very appropriately, Professor W, the psychiatrist who would be responsible for Mrs. K's psychiatric wellbeing while in the hospital, has raised considerable concerns about the possible long-term impact on her mental state if the operation does take place and she does survive and returns home. He has raised a concern that she might even become suicidal. Dr. AB and Dr. P, however, feel that these risks, although correctly raised, are unlikely to eventuate. Indeed, Dr. AB said that there is a distinct possibility that her web of delusional beliefs will come to include a denial that she has ever had the operation at all. She has no history of depression, self-harm or suicidal thoughts, and Dr. AB does "not see long-term psychological sequelae as a big issue". Dr. P gave evidence to the same effect, and it is certainly the belief of the sons that if the operation does take place, and she does survive, they will be able to help her recover from the emotional impact.

[35]By the end of the hearing, no party suggested that the long-term concerns which Professor W had raised (and which others, including in particular Mr. J, had shared) themselves contraindicate the proposed operation. (vii). The use of physical restraint or sedation

[36]The operation was originally scheduled for a date in July 2012. On that occasion the patient became so agitated and resistant while in the ward prior to anaesthesia that it had to be abandoned. It was that event which triggered the present application to the Court of Protection. It raises the very serious issue and concern as to how, even if the court determines that the operation is in her best interests, it can actually be achieved without her pre-operative compliance (this is a separate and distinct issue from that of post-operative compliance, which I have already discussed).

[37]Her sons propose that they would be, in their words, "economical with the truth" when they first take her in the car to the hospital. She is well used to visiting the hospital for tests and examinations and they would not at that stage tell her that the major operation was planned. Her sons would not want to deceive her but, as her eldest son, Mr. MM, said very clearly, if they do not do so this simply will not happen. He argued that if it is objectively in her best interests to have the operation, then it must be in her best interests, and morally justifiable, to be less than frank with her at that stage so as to achieve her admission to the hospital. I accept that, and the Official Solicitor does not argue against it. It might appear to offend the legal requirement of section 4(4) of the Mental Capacity Act 2005 but that is qualified by the words "so far as reasonably practicable".

[38]Greater difficulties arise, however, once she is at the hospital and the operation is scheduled to begin. She must be told in sympathetic and straightforward language what is proposed. Mr. J himself would not be willing to operate without having first told her. The sons and others predict, however, that no sooner is she told this than, just as in July, she would become physically resistant. This has led to much discussion during the evidence and the hearing as to the legality, ethics and medical impact of the use at that point of physical restraint so that she could be sedated and later anaesthetised.

[39]I can, however, cut through it. There is medical evidence, to which I have already referred, to the effect that it could be very risky to apply physical restraint to Mrs. K in view, in particular, of her prolonged QT interval. It would be particularly risky immediately prior to anaesthesia. No one now advocates the use of physical restraint and it would not be employed at any stage pre-operatively.

[40]A separate and discrete issue is, however, whether she might first be lightly sedated before being told, so that, it is hoped, she is compliant and not resistant as in July. This, too, has been the subject of considerable discussion and evidence. In the upshot, the declaration which the applicant Trust invite me to make on this issue (if I consider that the operation as a whole may take place) is that "it shall be lawful for sedation to be administered by, and thereafter continuously monitored by, a qualified anaesthetist before Mrs. K is informed that it is proposed to carry out the [proposed] surgery and anaesthesia".

[41]Again, the sons have pressed upon me the logical argument that if it is in her overall best interests to have the operation, it must be in her best interests to have the sedation, unless medically contraindicated at the time, to enable the operation to take place. If I do decide to make an order permissive of the operation, the Official Solicitor does not oppose a consequential declaration in the above terms.

[42]As to the lawfulness of doing so, my attention has been drawn to a decision of Sir Nicholas Wall, President, in DH NHS Foundation Trust v PS

[2010] EWHC 1217 (Fam)

. In that case a hysterectomy was in the best interests of a patient who had agreed on previous occasions to undergo the operation, but had been overcome on the day by fear and needle phobia. The President made an order which approved a plan which included provision for covert sedation at the patient's home with a sedative drug mixed with a soft drink such as Ribena. (In that case there was provision also for the use of force if necessary to sedate her and convey her to hospital - see paragraph 19 of the judgment - but there were not the medical risks associated with co-morbidities that there are in this case.)

[43]Although there are many factual differences between that case and this one, that authority does satisfy me that if it is in Mrs. K's overall best interests to have the operation, it can be lawful, and in her best interests, to sedate her to enable it to take place, and lawful to do so before she is told, after sedation but before anaesthesia, what is planned. There must be a qualified anaesthetist (not necessarily at that stage Dr. VB herself) throughout.

[44]I do consider that an ethical issue may arise as to the degree of sedation and whether the surgeon can ethically proceed to operate unless he has given to the patient an adequate account of what he proposes to do while she retains sufficient awareness to hear it and take it in. But that is an ethical matter for him. I am satisfied that a declaration in the terms I have just quoted would, on the issue of sedation, be in her best interests and is lawful.

Overall assessment of best interests

[45]The court has to weigh all relevant circumstances, both advantages and disadvantages, and determine where the balance of the patient's best interests lies. It has become conventional, and is a useful tool in a case such as this, to draw a list of advantages and disadvantages. Ms. Amy Street, who appears on behalf of the Official Solicitor, has done so and I incorporate it as an appendix to this judgment. These include, rightly, references to issues including pain and discomfort. I was told, however, that almost every woman who suffers this form of cancer and is advised to undergo a hysterectomy does do so, accepting with fortitude the inevitable pain and discomfort.

[46]There is no evidence in this case that it is fear of the pain and discomfort that motivates Mrs. K. It is her delusions, including her delusional belief that she does not have cancer at all. In the end, the benefits of the proposed operation are clear. There is a good prospect that if she survives the operation she may be cured of the cancer and spared a painful, undignified and premature death, albeit that (as I have explained and fully appreciate) she could die at any time from the other co-morbidities.

[47]The really significant countervailing factor in this case is the risk of death in the overall operative period, in particular during the recovery stage. In the simple words of Ms. Street in her written closing submissions:

"… the risks of mortality post-operatively are too high to make it in her best interests to undergo the surgery."

In her oral submissions, Ms. Street made clear that in making that assessment and judgment the Official Solicitor, relying upon the evidence of Dr. Bell, takes "the overall risk to be not far below 50% and definitely way higher than Mr. Anderson's 5%".

[48]I have, therefore, to form my own best assessment of those risks, viewing the evidence as a whole. It is on this critical issue that there is the most divergence within the evidence. As I have already described, the assessment of Dr. Bell places the overall risk of mortality around 40-50%. The assessments of Mr. Anderson, Dr. VB and Dr. W all assess the risk as very high, but that is a relative observation. Where the normal rate of mortality is around 1 in 1000, then clearly a mortality of even 5%, or 1 in 20, is very high indeed. We are not concerned, however, with relative risk, but only with the degree of risk to this particular patient. I did not understand any of Dr. VB or Dr. W, and certainly not Mr. Anderson, to predict that there is a 40 or 50% likelihood of this particular patient dying. Mr. Anderson advanced the figure of 5% to which I have referred. Dr. VB and Dr. W did not wish to use percentages, but neither said that they considered Mr. Anderson to be markedly optimistic in his assessment. As I have said, Dr. VB's comment (clearly speaking relatively) was that 5% is a very high risk.

[49]By the conclusion of their respective evidence, and being aware of the written report of Dr. Bell (from which I have quoted above), none of Mr. J, the surgeon, or Dr. VB, the anaesthetist, or Dr. W, the intensivist, were saying that in their opinion the risk of mortality is unacceptably high and, as I understand it, each currently supports that the operation does take place.

[50]I am deeply conscious of the risk of death in this case but, viewing the evidence as a whole, it seems to me that Dr. Bell may have been unduly pessimistic. The evidence as a whole supports that the actual risk of mortality peri-operatively for this patient, if there is no attempt at lymphnodectomy, is closer to 5% than to 40 or 50%. Even if the risk is of the order not of 5% but of 10%, it seems to me to be a risk worth taking. I differ, therefore, from the Official Solicitor not because I would regard a 40 to 50% risk as acceptable, but because it seems to me, on all the available evidence, that although the risk of post-operative mortality is high, it is not so high as the assessment and position of the Official Solicitor assumes.

Lymphnodectomy

[51]I do not intend to be prescriptive about the method of the surgery and it must of course be left entirely to the judgement of Mr. J (in conjunction with the dictates of anaesthesia) whether he operates laparoscopically or by abdominal incision or, indeed, vaginally. It is clear, however, that any benefit from lymphnodectomy is more speculative as I have described. It is lymphnodectomy which is the most technically difficult procedure in this obese lady, as Mr. J was himself the first to say. Lymphnodectomy certainly adds to the duration and gravity of the invasion and adds risks of haemorrhage and post-operative complications. By the end of the hearing, Mr. Charles Utley, on behalf of the Trust, was not pressing for the declaration to extend to lymphnodectomy and, in my view, the aim of the operation should be limited from the outset to the more straightforward elements of hysterectomy and removal of the fallopian tubes and ovaries.

A power of "veto"

[52]No one, nor any court, can order or require any doctor to take any step. The court can only permit it. It follows, of course, as I wish to make crystal clear, that my intended order will permit and render lawful the procedures described, notwithstanding the lack of consent of the patient. Right up to the last moment, however, it must remain a matter for the individual professional judgement of Dr. VB and Mr. J whether they think it justifiable to embark on the sedation, the anaesthesia and the surgery. Each of them has, therefore, a practical power of veto. I intend, nevertheless, to make it express on the face of the order that the proposed declaration ceases until further order to be of any effect if at any stage prior to the actual sedation, anaesthesia or surgery either Dr. VB or Mr. J notifies her/his colleagues that she/he considers it should not take place.

[53]The position of Dr. W, the intensivist, and Professor W, the psychiatrist, is somewhat different. The anaesthesia and surgery could of course take place without their presence or intervention at that stage. In my view, however, on the facts and in the circumstances of this case each of them, too, should have a power of temporary "veto". Dr. W, the intensivist, described, somewhat to my surprise, how in their hospital the intensivists and their ICU team are, as it were, at the end of the process. They receive patients after the surgery is completed and, as it were, take them from there in whatever state the intensivist finds the patient in. Indeed, there is a considerable physical journey from the operating theatre to the ICU. Dr. W, the intensivist, had not been involved in any pre-operative discussions or planning in July, and even when she gave her oral evidence here last week she had had little involvement in the case, to her own surprise.

[54]Whatever the normal procedure, the facts and circumstances of this case are very special ones. The patient has many co-morbidities. There are predicted to be high risks of a range of post-operative complications, and a high (although in my judgment, acceptable) risk of post-operative mortality. There is the added complication of possible non-compliance. In my view, it is essential that Dr. W and her team are themselves part of the planning process and she, too, should have a power of temporary veto if she considers that the risk of post-operative mortality has simply become too great.

[55]The patient has special psychiatric complications and needs. The Trust have already volunteered, in Mr. Utley's draft declaration, that it is a condition of the permission that Professor W and his team should undertake Mrs. K's psychiatric care at all stages of her treatment. He, too, must therefore be empowered with an effective power of veto, even although it is not he who would be administering the sedation or anaesthesia, or performing the surgery.

The position of the sons

[56]I wish to stress very clearly that the power and duty to make the best interests decision and consequential declarations is vested in the court alone. It is my duty to take responsibility for my decision, and although it is a heavy burden I, and I alone, do so. But in reaching that decision I have paid considerable regard to the position and views of the three sons, which I respect. They are not doctors but they know their mother well and each of them would be heavily involved during her recovery and convalescence. I do not make the declarations because they ask me to do so; but I might well have refused to make the declarations if they had raised any reasoned opposition to them.

[57]Circumstances may change. They may reassess issues, such as the mental state of their mother or her likely post-operative compliance. For that reason, although the operation does not require their consent, there must be a temporary brake upon it if any of the them notifies the doctors, making reference to the relevant part of the court order, that he no longer considers that the operation should take place. I stress that all these powers of veto or brakes are temporary, not absolute. They would halt the process but would not preclude further consideration by the court (myself if possible) in the light of the changed circumstances.

Outcome and order

[58]For these reasons, and with these explanations, I now make declarations and orders in the following terms:

"(1) Subject to paragraph (2) below, it is hereby declared as follows:- (a) it shall be lawful, notwithstanding K's refusal to consent to such treatment, for Mr. J, a consultant surgeon at [blank] hospital and his team to perform on K a hysterectomy and bilateral salpingo-oophorectomy under general anaesthetic; (b) it shall be lawful, notwithstanding K's refusal to consent thereto, for Dr. VB, a consultant anaesthetist at [blank] Hospital and her team to administer general anaesthetic and any necessary pre-operative sedation ( provided the sedation is administered by, and thereafter continuously monitored by, a qualified anaesthetist) to K for the surgery permitted in paragraph (a) above; (c) it shall be lawful for sedation to be administered by, and thereafter continuously monitored by, a qualified anaesthetist before K is informed that it is proposed to carry out the above surgery and anaesthesia; (d) it shall be lawful, in the event of K refusing to co-operate with post-operative recovery treatment, for Dr. W, a consultant in anaesthesia and intensive care, and her team to sedate K in order to carry out treatment considered necessary to ensure her survival. (2)(i) It shall be a condition of the permission granted by paragraphs (1)(a) to (d) above that a consultant psychiatrist, Professor W, and his team should undertake K's psychiatric care at all stages of her treatment. (ii) The declarations in paragraphs (1)(a), (b) and (c) above shall cease until further order to be of any effect if at any stage prior to the actual sedation or anaesthesia or operation any of Mr. J, Dr. VB, Dr. W or Professor W notifies his/her colleagues pursuant to this paragraph of this order that he/she considers that the sedation or anaesthesia or operation should not take place; or if any of the patient's three sons notifies the doctors pursuant to this paragraph of this order that he no longer considers that the operation should take place. In the event of any person making a notification pursuant to this paragraph, the matter may be restored to the court, reserved to myself, Mr. Justice Holman, if available. (3) An official transcript approved by the judge must be made urgently of the judgment given today, at the expense of the applicant Trust. It and this order must be supplied to, and read by, each of Mr. J, Dr. VB, Dr. W and Professor W before any procedures authorised by this order take place. Copies may also be supplied to all other doctors who gave evidence at the hearing."

[59]Just pausing there, I have said a great deal in this judgment. None of the doctors are present. I make no complaint about that, but I absolutely require that before this goes ahead this transcript has been obtained and approved by me, and those treating doctors must read it in amplification of all that has been said and, in particular, amplifying the point about the power of veto. It is also a courtesy, in my view, when doctors have given evidence as expert witnesses, like Mr. Anderson and Dr. Bell, that they should be able to see what the judge decided and why. But that is as a courtesy to them. It is not something I am stipulating.

[60]Assuming the surgery now takes place, it is of course my fervent hope that it will proceed as smoothly as possible to a good outcome for Mrs. K. Like her sons, I fully appreciate that it may not. I, like they, have tried to do my very best for her.