Cambridge University Hospitals NHS Foundation Trust v BF [2016] EWCOP 26

Case No 12864308

[2016] EWCOP 26

COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/05/2016

Before

MR JUSTICE MACDONALD

Between

Cambridge University Hospitals NHS Foundation TrustApplicant

BF (by her litigation friend, the Official Solicitor)Respondent

Mr Vikram Sachdeva QC (instructed by Kennedys Law LLP) for Applicant

Mr Conrad Hallin (instructed by the Official Solicitor) for Respondent

Hearing Hearing date: 4 May 2016

Judgment

Mr Justice MacDonald:

INTRODUCTION

[1]It is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo, and a graver step still where to make such a declaration will, whatever other benefits may attend that treatment, result in the patient being deprived permanently of her ability to have children. Parliament has conferred upon the court jurisdiction to make a declaration of such gravity only where it is satisfied that the patient lacks the capacity to decide whether to undergo the treatment in question and where it is satisfied that such treatment is in that patient’s best interests.

[2]In this case I am asked to decide two questions. First, whether BF, a 36 year old lady with a diagnosis of paranoid schizophrenia, has the capacity to consent to or to refuse medical treatment for ovarian cancer, specifically a total abdominal hysterectomy (removal of the uterus and cervix) with bilateral salpingo-oopherectomy and omentectomy (removal of the ovaries and fallopian tubes), with a possible bowel resection and colostomy, general anaesthetic, sedation and ancillary treatment? Second, if BF does not have capacity in this regard, is it in her best interests to undergo such medical intervention such that the court should so declare?

[3]On 4 May 2016 I heard submissions in this matter from Mr Vikram Sachdeva QC on behalf of the Trust and from Mr Conrad Hallin on behalf of the Official Solicitor representing BF’s interests. I considered evidence from Mr L, Consultant and Lead Gynaecological Oncologist, Dr B, Consultant Psychiatrist, Dr P, Consultant Anaesthetist and Ms Amanda Mead, Solicitor on behalf of the Trust.

[4]Having considered the evidence before the court and having heard the submissions of counsel I decided that BF lacked capacity to make the decisions in issue at this time. I further concluded that it was in her best interests to undergo the medical treatment the Trust sought to give her. I now set out my reasons for reaching those conclusions.

[5]The hearing on 4 May 2016 was held in open court. At the hearing I considered an application by the Trust for a reporting restriction order. I granted a reporting restriction order which prohibited the naming of BF, any doctor, nurse or other professional caring for her, any person who provided written or oral evidence in the proceedings other than an independent expert witness, the institution in which BF is treated or cared for and, but only for the duration of BF’s admission for surgery, the identity of the NHS Trust. My reasons for granting that order and for stipulating the terms it contains are set out in the ex tempore judgment I gave on 4 May 2016.

ESSENTIAL BACKGROUND

[6]BF is 36 years old. In 2006 she was diagnosed with paranoid schizophrenia consequent upon her longstanding abuse of stimulant and hallucinogenic drugs. BF’s mental illness is described as severe and its course has been characterised by relapsing psychotic episodes. In June 2013 Dr B became BF’s treating psychiatrist and, on 15 August 2014, her Responsible Clinician under a Community Treatment Order made pursuant to the Mental Health Act 1983 s. 17. BF is treated with regular depot injections of the anti-psychotic drug Clopixol.

[7]At the present time BF is detained in a mental health unit pursuant to the Mental Health Act 1983 s. 3 in circumstances I shall detail below.

[8]BF is also at present under the care of Mr L, Consultant and Lead Gynaecologist Oncologist. On 17 February 2016 BF was referred to the NHS Trust with a history of bloating and abdominal distention that had worsened over a period of months. On examination extensive ascites (abnormal accumulation of fluid in the peritoneal cavity) were noted. A CT scan on 24 February 2016 revealed a mass. The results of the CT scan were discussed at a Multi-Disciplinary Team meeting on 1 March 2016 and the scan was assessed as showing the appearance of stage IIIB ovarian cancer. In addition, upon blood tests being undertaken BF showed an elevated CA125 reading of 114, consistent with an ovarian tumour.

[9]On 2 March 2016 BF was seen by Mr L in clinic. Mr L explained to BF and her parents that he was concerned BF had ovarian cancer and that she needed surgery. Specifically, BF was advised by Mr L that the surgery that was planned would involve a total abdominal hysterectomy, which would mean the loss of her fertility. BF was also advised of the possibility that, following surgery, the histopathology results could show that she mass was not, in fact, cancerous.

[10]In response to being told of her diagnosis by Mr L and of the proposed treatment, BF stated that she wanted to get pregnant but did not at present have a partner (BF is at present seeking a divorce from her current husband). Mr L considered that BF appeared to understand the information given to her at the time she received it on 2 March 2016. On 31 March 2016 BF signed a consent form for “Primary surgery for gynaecological cancer” in respect of the surgery proposed by the Trust.

[11]On 31 March 2016 BF was admitted to theatre for surgery. BF was seen by Dr P, consultant anaesthetist in preparation for the administration of the anaesthetic. On that occasion, in part due to BF’s weight (which presently stands at 119Kg), Dr P had difficulty gaining venous access. The associated stress attendant on these difficulties caused BF to suffer a psychotic episode during which BF refused surgery, stating that her distended abdomen was not due to a tumour but rather to “bad air”. Notwithstanding the intercession of BF’s parents, BF could not be persuaded to undergo surgery, continued to decline it and the surgery was cancelled.

[12]An assessment of BF’s capacity undertaken on 10 April 2016 by her psychiatric nurse indicated that BF once again had capacity to make decisions regarding her medical treatment. In respect of the surgery BF expressed her wish that she be first on the surgery list on the day the surgery was to be performed, that her parents stay with her until she is under anaesthetic, that her parents be present when she wakes up and that there is a good plan in place to find a vein before an attempt is made to gain venous access. Accordingly, a plan was made for the surgery to be undertaken on 5 May 2016. However, on 15 April 2016 the Trust was contacted by BF’s Approved Mental Health Practitioner who once again raised concerns about whether BF had capacity to take decisions regarding her medical treatment (although he considered her to have capacity on that day). Within this context, a multidisciplinary meeting was arranged for 27 April 2016.

[13]On that date BF was seen by Mr L, Dr P, Dr B and her Approved Mental Health Practitioner. In light of her presentation at this meeting (which I deal with in greater detail below) Mr L completed a Capacity Assessment and concluded that BF did not have the capacity to give her consent to the surgery. Dr B undertook a home visit to BF the following day on 28 April 2016. As a result of her assessment of BF on that day, Dr B recalled BF to hospital in order to further assess and treat her psychiatric condition.

[14]On 29 April 2016 the Trust issued its application. The matter came before Moylan J on 29 April for directions. Moylan J granted the Trust permission to bring the proceedings, joined BF as a party and appointed the Official Solicitor to act as her litigation friend and listed the matter before at risk before me to determine whether BF has capacity to decide whether to proceed with the surgery and, if she lacks capacity, whether it is in her best interests to undergo such treatment.

[15]On 3 May 2016 a representative of the Official Solicitor spoke to BF’s father. He confirmed that he did not wish to make representations to the court but confirmed that he wished the court to know that he wanted his daughter to undergo the proposed surgery and trusted the professionals to do what was best for BF. BF’s father said that his daughter was “hearing voices” and that he did not think that she could make the decision whether to have the surgery. Mr L describes the parents as being “emphatically supportive” of the medical team’s decision to recommend surgery. In light of her current florid psychosis the Official Solicitor did not consider it appropriate for his representative to see and speak to BF following Dr B’s visit on 28 April 2016.

[16]The Trust now seeks the following declarations in respect of BF under the Mental Capacity Act 2005: i) BF lacks the capacity to consent or refuse medical treatment, in particular total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment; ii) It is lawful being in BF’s best interests to undergo total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment.

THE LAW

[17]Pursuant to the Mental Capacity Act 2005 s 15(1) the court may make declarations as to whether a person has or lacks capacity to make a decision specified in the declaration, may make declarations as to whether a person has or lacks capacity to make decisions on such matters as are described in the declaration and may make declarations as to the lawfulness of any act done, or yet to be done in relation to that person. Within this context, ‘act’ includes an omission or course of conduct (Mental Capacity Act 2005 s. 15(2)).

[18]The law which the court must apply when determining whether BF has the capacity to make decisions as to her medical treatment and, if not, whether such treatment is lawful as being in her best interests is well established.

Capacity

[19]The law that I must apply to the facts in this case in reaching my decision as to capacity is set out in the Mental Capacity Act 2005 ss. 1 to 3. The sections of the Act relevant to my decision provide as follows: 1 The principles(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. …/ 2 People who lack capacity (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to— (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. …/ 3 Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision.

[20]In Kings College Hospital NHS Foundation Trust v C and V

[2015] EWCOP 80

I summarised the cardinal principles that flow from these sections of the statute as follows: i) A person must be assumed to have capacity unless it is established that they lack capacity (Mental Capacity Act 2005 s 1(2)). The burden of proof lies on the person asserting a lack of capacity and the standard of proof is the balance of probabilities (Mental Capacity Act 2005 s 2(4) and see KK v STC and Others

[2012] EWHC 2136 (COP)

at [18]); ii) Determination of capacity under Part I of the Mental Capacity Act 2005 is always 'decision specific' having regard to the clear structure provided by sections 1 to 3 of the Act (see PC v City of York Council

[2014] 2 WLR 1

at [35]). Thus capacity is required to be assessed in relation to the specific decision at the time the decision needs to be made and not to a person's capacity to make decisions generally; iii) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (Mental Capacity Act 2005 s 1(3)); iv) A person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise (see Heart of England NHS Foundation Trust v JB

[2014] EWHC 342 (COP)

at [7]). The outcome of the decision made is not relevant to the question of whether the person taking the decision has capacity for the purposes of the Mental Capacity Act 2005 (see R v Cooper

[2009] 1 WLR 1786

at [13] and York City Council v C

[2014] 2 WLR 1

at [53] and [54]); v) Pursuant to s 2(1) of the 2005 Act a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain (the so called 'diagnostic test'). It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary (Mental Capacity Act 2005 s 2(2)). It is important to note that the question for the court is not whether the person's ability to take the decision is impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof (see Re SB (A Patient: Capacity to Consent to Termination)

[2013] EWHC 1417 (COP)

at [38]); vi) Pursuant to s 3(1) of the 2005 Act a person is "unable to make a decision for himself" if he is unable(a) to understand the information relevant to decision,

(b) to retain that information,

(d) to communicate his decision whether by talking, using sign language or any other means (the so called 'functional test'). An inability to undertake any one of these four aspects of the decision making process set out in s 3(1) of the 2005 Act will be sufficient for a finding of incapacity provided the inability is because of an impairment of, or a disturbance in the functioning of, the mind or brain (see RT and LT v A Local Authority

[2010] EWHC 1910 (Fam)

at [40]). The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another (Mental Capacity Act 2005 s 3(4)(a)); vii) For a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the diagnostic element of 'impairment of, or a disturbance in the functioning of, the mind or brain' required by s 2(1) of the Act, i.e. for a person to lack capacity the former must result from the latter (York City Council v C

[2014] 2 WLR 1

at [58] and [59]); viii) The threshold for demonstrating capacity is not an unduly high one (see CC v KK & STCC

[2012] EWHC 2136 (COP)

at [69]).

Best Interests

[21]The Mental Capacity Act 2005 s 4(1) provides as follows in respect of determining the question of best interests: 4 Best interestsE+W(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which— (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10) “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11) “Relevant circumstances” are those— (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.

[22]In order to determine the question of best interests the court must consider all the circumstances of the case (Mental Capacity Act 2005 s 4(2)). The assessment of best interests under the Mental Capacity Act 2005 s. 4 is thus an assessment wide in compass and not confined to an assessment only of the best medical interests of the patient. Beyond this description however, it has been observed that it is undesirable, and probably impossible, to set bounds on what matters will be relevant to a welfare determination (Re S (Adult Patient: Sterilisation)

[2001] Fam 15

at 30). As Hedley J noted in Portsmouth NHS Trust v Wyatt

[2005] 1 FLR 21

“the infinite variety of the human condition never ceases to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests.” In Aintree University Hospitals NHS Foundation Trust v James & Ors

[2014] AC 591

, and noting that the purpose of the best interests test is to consider matters from the patient’s point of view, Baroness Hale observed at [39] that:

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

[23]In considering all of the circumstances of the case in order to reach a best interests determination, the Act requires the court to consider a number of specific matters: i) Whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that they will, when that is likely to be (Mental Capacity Act 2005 s. 4(3)). The MCA Code of Practice at para 3.14 provides that where a person’s capacity is likely to improve in the foreseeable future then, if practical and appropriate, the person should be helped to make the relevant decision by waiting until their capacity improves. The Code of Practice at para 4.27 provides that an assessment must only examine a person’s capacity to make a particular decision when it needs to be made and, accordingly, it may be possible to put off the decision until the person has capacity to make it. However, para 5.26 of the Code of Practice recognises that in emergency situations, such as when urgent medical treatment is needs, it may not be possible to see if the person may regain capacity so that they can decide for themselves whether or not to have the urgent treatment; ii) The person's past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity) (Mental Capacity Act 2005 s 4(6)(a)); iii) The beliefs and values that would be likely to influence their decision if they had capacity (Mental Capacity Act 2005 s 4(6)(b)); iv) The other factors that they would be likely to consider if they were able to do so (Mental Capacity Act 2005 s 4(6)(c)); v) If practicable and appropriate, the views of, inter alia, anyone named by the person as some to be consulted on the matter in question, anyone engaged in caring for the person or interested in his or her welfare as to what would be in the person’s best interests and in particular as to the matters set out in s 4(6) of the 2005 Act (Mental Capacity Act 2005 s 4(7)).

[24]The court must also, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any decision affecting him or her (Mental Capacity Act 2005 s. 4(4)).

[25]In assessing whether it is a patient’s best interests to receive treatment that will or may prolong their life, the fundamental principle of the sanctity of human life will weigh heavily in the balance.

Art 2 of the European Convention on Human Rights

imposes a positive obligation to give life-sustaining treatment where responsible medical opinion is of the view that such treatment is in the patient’s best interests, although that obligation is not absolute. As Munby J (as he then was) observed in R (Burke) v GMC

[2004] EWHC 1879 (Admin)

in a passage approved by the Court of Appeal:

“There is a very strong presumption in favour of taking all steps to prolong life, and save in exceptional circumstances, or where the patient is dying, the best interests of the patient will normally require such steps to be taken. In case of doubt, that doubt falls to be resolved in favour of the preservation of life. But the obligation is not absolute. Important as the sanctity of life is, it may have to take second place to human dignity…”

[26]Pursuant to the Mental Capacity Act 2005 s 4(1) the decision as to what is in a person’s best interests must not be taken merely on the basis of the person’s age or appearance nor on the basis of the person’s condition, an aspect of their behaviour that might lead others to make unjustified assumptions about what might be in the person’s best interests.

[27]Within this context it is also important to remember that, by reason of the inalienable and universal character of human rights, a person who lacks capacity has the same human rights as a person who does not lack capacity (see P v Cheshire West [2014] UKSC). In addition to rights under

Art 2 of the ECHR

, as articulated above, BF benefits from rights under Art 3 (right not to be subjected to torture or to inhuman or degrading treatment or punishment) and Art 8 (right to respect for family and private life) under the Convention. The assessment of BF’s best interests must take account of these rights.

[28]Finally Mr Hallin, on behalf of the Official Solicitor, points out that in cases of this nature a “balance sheet” approach to determining best interests has been favoured. As explained by Thorpe LJ in Re A (Male Sterilisation)

[2000] 1 FLR 549

560 F-H: "…there can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal…Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case the instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension, the risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses.

[29]As Thorpe LJ made clear, this approach was advanced “pending the enactment of a checklist or other statutory direction”. Within this context, whilst the balance sheet is a very useful tool, having compiled the same the court must still come to its decision as to best interests by reference to the principles set out above grounded in the Mental Capacity Act 2005 s. 4. As McFarlane LJ observed in Re F (A Child) (International Relocation Cases)

[2015] EWCA Civ 882

in the context of the assessment of competing welfare issues concerning children:

“Whilst I entirely agree that some form of balance sheet may be of assistance to judges, its use should be no more than an aide memoire of the key factors and how they match up against each other. If a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself. A key step in any welfare evaluation is the attribution of weight, or lack of it, to each of the relevant considerations; one danger that may arise from setting out all the relevant factors in tabular format, is that the attribution of weight may be lost, with all elements of the table having equal value as in a map without contours.”

THE EVIDENCE Diagnosis

THE EVIDENCE

[30]Mr L is clear that the CT scan undertaken on BF shows a very large ovarian tumour and ascites, with the appearance being that of stage IIIB ovarian cancer. Mr L states that the differential diagnoses are(i) ovarian cancer,

(ii) another primary cancer that has metastasised into the ovary or

(iii) a benign or borderline ovarian tumour.

[31]Whilst Mr L states that, within this context, there is a small degree of uncertainty in the diagnosis of ovarian cancer, the results of the CA125 blood test (which tests for a marker of ovarian cancer tumours) and the appearance on the CT scan, he concludes that the probability of ovarian cancer is at least 80% based on the risk of malignancy data. Indeed, whilst cautioning that certainty can only be achieved through histopathological analysis following surgery, Mr L considers the probability of ovarian cancer in this case to be even higher than 80% in view of the clear impression of metastasis to the omentum, which is predictive of stage IIIB ovarian cancer. Whilst there are two possible procedures that could provide further evidence with respect to diagnosis (a biopsy of the mass or a frozen section undertaken during a more limited surgery) Mr L is clear that both these procedures carry significant disadvantages in the context of the evidence indicating a very high probability of ovarian cancer.

[32]The evidence of Mr L as to BF’s diagnosis was not challenged by the Official Solicitor on behalf of BF.

Proposed Treatment

[33]By reason of her diagnosis Mr L considers that BF requires urgent surgery, including a total abdominal hysterectomy, a bilateral salpingo-oopherectomy and an omentectomy. There is a possibility that, as a result of these procedures, BF will also be required to undergo bowel resection (to remove all malignant disease) with the consequent need to form a colostomy. Mr L puts the risk of bowel resection and colostomy being required at less than 5%.

[34]The anaesthetist Dr P makes clear in her evidence that in order for the surgery to be undertaken BF will need a general anaesthetic and endotracheal intubation. Dr P relates that, within this context, intravenous access is required prior to anaesthesia in order to administer the necessary anaesthetic drugs to permit safe induction of anaesthesia and control of the airway resulting in intubation of the trachea.

[35]The plain for gaining venous access for surgery (the stress of which caused BF to decompensate on 31 March 2016) will be to gain venous access the day before surgery is planned and using a method to gain access which is faster (using ultrasound to gain access to deeper veins) and undertaken when BF is sedated to reduce the stress on BF. Once inserted the venous access will be heavily bandaged to reduce the risk of it being pulled out by BF. Dr P does not consider that the standard practice of administering an epidural in addition to general anaesthesia for post-operative pain relief would be one with which BF would comply. Instead, Dr P considers that BF should have local anaesthetic block applied to her wound and intravenous opiate analgesia post-operatively.

[36]The Trust had originally sought a declaration from the court that it would be lawful to restrain BF for the purpose of administering anaesthesia to her. However, Dr P is clear that this would not be appropriate in this case. First, Dr P states that there would be difficulties managing her airway in this context due to her obesity and her ascites. Second, Dr P states that with a body mass of 119kg it would physically impossible to restrain BF for the period required to undertake a gaseous induction. Within this context, Dr P counsels against the use of restraint and suggests the use of oral, intravenous or intra-muscular sedation dependent on BF’s level of compliance. In the circumstances, the Trust no longer pursues a declaration with respect to restraint.

[37]If BF undergoes the surgical procedures I have described she will also, in due course, require adjuvant chemotherapy. Mr L proposes that the venous access inserted for the surgery will remain in situ for 18 to 20 weeks to facilitate the administration of the chemotherapy. With respect to the latter, Dr P cautions that there is a risk that BF would either use the line for intravenous drugs or would attempt to remove it, risking a potentially life threatening haemorrhage or air embolism. The Trust seeks no declaration today in respect of adjuvant chemotherapy as the time has not yet come for this to be administered and BF’s capacity to consent or refuse this treatment will need to be assessed when it has.

[38]The evidence of Mr L and Dr P as to BF’s treatment was not challenged by the Official Solicitor on behalf of BF.

Capacity

[39]BF has a diagnosis of paranoid schizophrenia brought on by longstanding abuse of stimulant and hallucinogenic drugs. Dr B makes clear that at times of substance abuse or stress BF presents with florid psychotic symptoms that include auditory hallucinations, with “voices” talking directly to her or about her between themselves. The “voices” are usually persecutory as well as derogatory. BF also exhibits abnormal beliefs, or delusions, of a paranoid and bizarre nature which include delusions of impostors impersonating people around her as well as her having doubts as to the reality of her own identity. Despite being the subject of several Community Treatment Orders, Dr B states that BF’s lack of insight into her illness, poor response to anti-psychotic medication, erratic compliance with medication and failure to engage with services when unwell has led to the need for her to be remitted to hospital for treatment under s.3 of the Mental Health Act 1983 on several occasions.

[40]Dr B states that despite current treatment with depot anti-psychotic medication and anti-psychotic tablets BF continues to experience symptoms related to her illness. Dr B considers that at the multi-disciplinary meeting on 27 April 2016 BF was presenting with florid psychotic symptoms. Dr B records that BF considered that her treating team, her parents and the mental health professionals are all imposters who are controlled by a “bad machine”. Dr B further records that BF is certain that the CT scans of her abdomen are false and requested another scan to find out what was real and what was not. Dr B relates that BF believes that the tumour was placed in her body by “screen things” with the aim of influencing the doctors into stating that the operation was needed.

[41]During the meeting on 27 April 2016 Dr B states that BF stated several times she did not want to go ahead with the operation and was convinced she would suffer no harmful consequences as a result of her refusal. At one point during the meeting BF did decide to go ahead with the operation but then immediately said “I don’t want it done, I would rather leave it. If I do deteriorate then I do, that’s my fault, if I have cancer then I do.” Within this context, BF stated that “bad voices” and “their machines” were controlling her mind, putting thoughts into her mind and taking them away and were repeatedly telling her “not to have the operation”. Dr B records that BF stated that the “voices” know her mind, that they were interfering with her thoughts with “special equipment” and that it was difficult to know what is true and what isn’t true.

[42]As recorded above, on 28 April 2016 Dr B saw BF at home. BF told Dr B that she was pre-occupied with “one bad voice” which she acknowledged was affecting her decision whether to accept the surgery being proposed by her treating team. As noted, on 28 April 2016 Dr B decided to recall BF to hospital for treatment under s. 3 of the Mental Health Act 1983.

[43]Dr B is clear that the symptoms of BF’s paranoid schizophrenia undermine her capacity to make decisions concerning her medical treatment. The evidence of Dr B as to BF’s diagnosis and its impact on her capacity to take the decisions in issue was not challenged by the Official Solicitor on behalf of BF.

Best Interests

[44]Without treatment Mr L is clear in his evidence that BF will have progressive disease to the point where she will cease to be a candidate for surgery. Without surgery Mr L considers that BF’s prognosis for survival is, perhaps, six months. Whilst he states that the prognosis with surgery is also uncertain, Mr L considers that, depending on the tumour type and stage, BF has the chance of being cured and at least achieving a survival period of between three and five years.

[45]The surgical procedures I have set out above are considered to be urgent by Mr L by reason of the certainty of progressive disease if surgery is not performed and the risk that, within a few weeks, BF will not be well enough to undergo surgery due to an increasing inability to eat as a result of the pressure of ascites on her stomach, resulting in her becoming catabolic and prone to infection, and the risk of developing a bowel obstruction and venous thrombosis, both of which could be fatal.

[46]Dr P is clear that for a person of BF’s weight and raised body mass index (BMI) general anaesthetic and endotracheal intubation are high risk procedures. Specifically, BF’s raised BMI may contribute to difficult mask ventilation prior to intubation or difficult intubation itself. These difficulties raise the risk of hypoxia. The extent of BF’s ascites cause raised intra-abdominal pressure, increasing the risk of regurgitation and aspiration of gastric acid during intubation and again risking intra-operative hypoxia. In addition, Dr P anticipates cardiac instability under anaesthesia due to the due to the mass of the fluid in the ascites and its effect on BF’s cardiovascular system. Dr P is states that these risks can be managed by meticulous planning, good technique and appropriate interventions.

[47]Ahead of the planned surgery on 31 March 2016 BF signed a consent form in respect of that surgery. Since that date she has expressed both a wish to have the surgery and a wish not to. In addition, and very importantly, as noted above at the multi-disciplinary meeting on 27 April 2016, and upon being informed of the need for a total abdominal hysterectomy, BF expressed the wish to have children.

DISCUSSION

[48]Having considered carefully the evidence before the court and the submissions made by the Trust and by the Official Solicitor on behalf of BF I have come to the conclusion that BF lacks capacity to decide to consent to or refuse the identified medical treatment. I have further decided that it is in BF’s best interests to undergo the medical treatment that her doctors wish to give her. My reasons for so deciding are as follows.

Medical Diagnosis and Prognosis

[49]I am satisfied that the evidence before the court demonstrates that it is more likely than not (the likelihood being significantly higher than 80%) that the mass shown on the CT scan of BF’s abdomen is a stage IIIB malignant ovarian cancer that has spread to the omentum. I accept Mr L’s evidence in this regard, reinforced as it is by the results of the CA125 blood test (which tests for a marker of ovarian cancer tumours) and the clear impression given by the CT scan of metastasis to the omentum (which is predictive of stage IIIB ovarian cancer).

[50]I likewise accept Mr L’s evidence that without treatment BF will have progressive disease to the point where she will cease to be a candidate for surgery within weeks and that, without surgery, BF’s prognosis for survival is, perhaps, six months. Whilst I acknowledge that the prognosis with surgery is also uncertain, I accept Mr L’s evidence that, depending on confirmation of the tumour type and stage, BF has the chance of being cured and at least achieving a survival period of between three and five years.

Capacity

[51]I am satisfied that BF’s paranoid schizophrenia constitutes a disturbance in the functioning or the mind or brain. That disturbance is severe and is currently manifesting in a florid psychosis. In my judgment, BF’s diagnosis of paranoid schizophrenia fulfils the diagnostic element of the test for capacity.

[52]In my judgment it is clear on the evidence that BF’s current florid psychosis consequent upon her paranoid schizophrenia is rendering her unable to understand certain information relevant to the decision in issue. In particular, with respect to her diagnosis, BF’s psychosis has led her to doubt that she has a tumour, considering instead that the scans are false. Further, despite compelling evidence to the contrary, she has an entrenched view that she will not experience any harmful consequences by not having the operation. I am also satisfied that BF’s paranoid schizophrenia renders her unable to use or weigh relevant information as part of the process of making the decision in issue. BF believes her treating team, her parents and the mental health professionals are all imposters who are controlled by a “bad machine”. Further BF believes that the tumour was placed in her body by “screen things” with the aim of influencing the doctors into stating that the operation is needed. BF has reported that the “bad voices” and “their machines” are controlling her mind, putting thoughts into her mind and taking them away, and repeatedly telling her not to have the surgery. Again, within this context, BF is convinced she will suffer no harmful consequences by not going through with the surgery. When Dr B saw BF on 28 April 2016 she remained pre-occupied with “one bad voice” which she stated was affecting her decision whether to accept the treatment proposed.

[53]A diagnosis of schizophrenia will not lead inevitably to a conclusion that a person lacks capacity to make a given decision. However, in order to understand, and in order to use or weigh information relevant to the decision in issue a person has to have some capacity for rational thought regarding that information. Where a person labours under a condition that substantially deprives them of control of their thought process such that rational considerations concerning the relevant information are overpowered by involuntary irrational considerations (for example the belief that there is no threat to life where that threat is manifest or the repeated urging of intrusive auditory hallucinations) it is difficult to see how that person may be said to be able to understand or to use or weigh information relevant to the decision in question. In this case the evidence demonstrates that BF’s current florid psychosis overpowers her rational thinking with respect to the proposed surgery to the point where irrational beliefs about imposters, “bad machines”, “screen things” and intrusive auditory hallucinations telling her not to have the surgery dominate her thought process on that issue.

[54]Within the foregoing context, I am satisfied on the evidence that BF is unable to understand, and unable to use or weigh information relevant to the decision to consent to or refuse the surgery and associated medical treatment matter and that this is by reason of her paranoid schizophrenia. Indeed, in a very real sense, and as BF has herself at times described, her disease is currently, in effect, the decision maker. BF has depicted the “bad voices” and “their machines” as controlling her mind, putting thoughts into her mind and taking them away, and repeatedly telling her not to have the surgery and “one bad voice” that is affecting her decision. The evidence demonstrates in stark terms that the “bad voice” and the paranoia consequent upon her psychosis is fundamentally undermining her ability to understand the reality and seriousness of her condition, the threat to her life it represents and the urgent need for surgery, and her ability to use and weigh that relevant information as part of the process of making a decision.

[55]In the circumstances, by reference to the test set out in the Mental Capacity Act 2005, I am satisfied on the evidence before the court that BF lacks the capacity to consent or refuse medical treatment, specifically a total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment.

[56]As to the prospect of BF recovering capacity to take the relevant decisions, I am satisfied that the evidence of Dr B, and in particular her evidence regarding the duration and severity of BF’s condition, her lack of insight into her illness, her erratic compliance with and poor response to anti-psychotic medication, her failure to engage with services when unwell, her recent relapse, the impact on her mental health of the previous attempt to perform the surgery and the acute manner in which her condition impacts on her thinking regarding the surgery, suggest strongly that BF is unlikely, even with further treatment for her paranoid schizophrenia, to regain capacity to decide whether to consent to or refuse the treatment in question within the narrow timescale in which that surgery must be performed in order for it to benefit BF and hence within the timescale of making the decision in question.

Best Interests

[57]Having considered carefully the evidence and submissions in this case, I am further satisfied that it is in BF’s best interests for her to undergo the proposed surgery.

[58]Since 31 March 2016 BF has expressed mixed wishes and feelings during the course of her current florid psychosis. During the multi-disciplinary team meeting on 27 April 2015 she expressed both a desire to go ahead with the operation and objection to it, saying “I don’t want it done, I would rather leave it. If I do deteriorate then I do, that’s my fault, I have cancer then I do.” However, it is important to note that during the periods since 31 March 2016 when BF has expressed fluctuating wishes regarding the surgery, mostly against having the same, the evidence shows clearly that her expressed wishes have been closely connected to her florid psychosis and the repeated urgings of the “bad voice”.

[59]Within this context, it is further important to note that prior to the stress of the procedure for securing venous access triggered her current florid psychosis on 31 March 2015, and at a time she was considered to have capacity to consent or decline surgery, BF consented to the surgery and signed a consent form to that effect. I have taken account of this relevant written statement made by BF when she was considered to have capacity pursuant to the Mental Capacity Act 2005 s 4(6)(a). Mr L considered that when admitted for surgery on 31 March 2016 BF continued to have capacity. On that date, up to the point at which the stress of securing IV access triggered a psychotic episode it is clear from Dr P’s notes that BF co-operated with being taken to theatre and with the initial attempts to administer anaesthetic.

[60]I have, of course, paid anxious regard to the fact that BF expressed, on 27 April 2015, her wish to have a baby. I have further given anxious consideration to the fact that the surgery proposed will render her infertile and defeat any chance of her fulfilling her wish to have a child. This is a major consideration when seeking to determine the course of action that is in BF’s best interests. The loss of the ability to bear children is a matter of great moment in circumstances where that loss is irreversible and where BF has explicitly stated that it is her wish to have children.

[61]However, I am compelled also to bear in mind that, prior to 31 March 2016, BF appears to have consented to a total abdominal hysterectomy notwithstanding that this would deprive her of the ability to have children. Further, the loss of the ability to have children must be measured against the consequences for BF of not undertaking the surgery that would lead to that loss, namely the likelihood that BF would die within approximately six months. Within this context, and importantly, I bear in mind that it is likely that, were the hysterectomy not to take place, BF would die within a period much shorter than that required for her to carry a baby to term, even assuming she were to conceive immediately.

[62]I have also borne carefully in mind that the operation proposed for BF is not without risk, particular in relation to the administration of anaesthetic in light of BF’s BMI. In addition, there is a small chance that the surgery will result in BF having to live with a colostomy following the completion of the surgery. I also have borne in mind that there is a chance, albeit a very small chance on the evidence that is available to the court, that subsequent to the surgery histopathology will indicate that the total abdominal hysterectomy was performed on a non-malignant mass.

[63]Set against this must be that it is highly likely that BF has a very dangerous malignant ovarian tumour which, if not the subject of surgical intervention, is likely to lead, at the age of 36, to her premature death in approximately 6 months. If treated, it is likely that BF will live for three to five years and may be cured. Within this context I bear in mind the fundamental importance of the sanctity of life and that I should adhere to that fundamental principle when it is consistent with the subject’s best interests. It is of course the case that surgery resulting in survival will also mean that BF will continue to live with the symptoms of her longstanding paranoid schizophrenia. However, there is no suggestion on the evidence that the fact of her continued mental illness, as distinct from its effect on her thinking, has ever caused her to question or reject the treatment proposed.

[64]Finally, I have also borne carefully in mind that BF’s parents, who are closest to her and responsible for her care, are clear in their view that it is in their daughter’s best interests to undergo surgery to remove her cancer. BF’s father was clear that his daughter was “hearing voices” and that he did not think that she could make the decision whether to have the surgery and that the medical professionals should be trusted to do what was best for BF.

[65]Within the foregoing context I have done the best I can to consider the position from BF’s the point of view. I am assisted in this by the evidence regarding BF’s outlook in respect of the treatment at a time when she had capacity. The fact that she signed a consent form on 31 March 2016 when capacitous, the conditions she wished adhered too before, during and after surgery that she articulated on 10 April 2016 when she was again considered to have capacity (her wish that she be first on the surgery list on the day the surgery was to be performed, that he parents stay with her until she is under anaesthetic, that her parents be present when she wakes up) and her willingness to trust the medical professionals and their advice at that time suggest that, were she to feel comfortable by the medical team adhering to the conditions she stipulated on 10 April 2016, her outlook now would be in favour of surgery. I am satisfied that this would remain her outlook notwithstanding the small chance that the mass is not malignant in circumstances where she previously consented to surgery having been given that information. Within this context, I am likewise satisfied that without the intercession of the symptoms consequent upon her paranoid schizophrenia BF would value and be open to accepting the counsel of her loving parents. In light of her expressed wish to have children I am satisfied that BF would be distressed and upset about losing ability to have children. However, her previous consent to a total abdominal hysterectomy convinces me that she would wish to prioritise potentially life-saving treatment and the chance of continued life over the opportunity to bear children in the circumstances where, left untreated, her ovarian cancer will likely result in her death.

[66]Having regard to all the circumstances in this case, and to the matters I have set out in detail above, I am satisfied that it is in BF’s best interests to undergo the surgery recommended by Mr L. Such a course of action accords with that to which BF consented when she had capacity. It is a course of action that offers the chance of a significantly prolonged life-span and, perhaps, a cure and is consistent with preserving the sanctity of BF’s life by administering life-sustaining treatment where responsible medical opinion is of the view that such treatment is in BF’s best interests. Whilst BF will lose the ability to have children, her likely prognosis without treatment precludes that in any event, in that without surgery the likelihood is that death will occur in a timescale much shorter than that required to carry a baby to term. Within this context, I am satisfied that the chance of continued life outweighs the permanent loss of fertility. Finally, I have also had regard to the fact that the Official Solicitor contends on behalf of the BF that the course of action I am endorsing is one that is in her best interests.

CONCLUSION

[67]Mr Sachdeva QC on behalf of the Trust rightly described the need to decide between a likely fatal prognosis and certain infertility as a tragedy. For the reasons I have given I am satisfied that at present BF lacks the capacity to make that tragic choice for herself and, accordingly, the court must make it for her exercising the jurisdiction conferred upon it by Parliament. For the reasons I have set out above, and doing the best I can to put myself in her shoes as I am required to do, I am satisfied that BF’s best interests are served by undergoing surgery to remove her cancer. In so deciding I am acutely conscious that that decision will remove permanently her ability to have children.

[68]I declare that BF lacks the capacity to conduct these proceedings and to consent or refuse medical treatment, in particular total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment.

[69]I further declare that it is lawful being in BF’s best interests to undergo total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment.

[70]That is my judgment.

POSTSCRIPT

[71]On 17 May 2016, and immediately prior to the date set for the handing down of this judgment, the Trust provided the court with an updating statement detailing the outcome of the surgery on BF.

[72]The surgery was performed as planned on the morning of 5 May 2016 by Mr L. Mr L found a 20cm tumour on the left fallopian tube/ovary. Mr L established that BF had a normal uterus, right fallopian tube and right ovary. Having established this, Mr L performed a careful laparotomy to remove some ascites that were sent for cytology during the operation. Mr L also performed an LSO which was sent for frozen section during the operation. The results of the testing undertaken during the operation indicated a benign or borderline tumour with no evidence of macroscopic residual disease. On the basis of these findings Mr L proceeded to perform a left salingo-ophorectomy, omentectomy and appendicectomy. Mr L was able to preserve BF’s uterus and the right fallopian tube and right ovary, thus preserving BF’s ability to have children in the future should she so wish.