A National Health Service Trust v K and Anor (2012) H&FLR 2014-29

Court of Protection (UK)

15 October 2012

Coram: Holman J

Appearing for the Applicant: Mr Charles Utley (instrusted by the applicant’s legal department)
Appearing for the First Respondent: Ms Amy Street (instructed by the Official Solicitor)
Appearing for the Second Respondent: Mr Charles Utley (instrusted by Kennedys Law LLP)

Catchwords: United Kingdom – Person under disability – cancer – surgery – obesity – diabetes – asthma – heart dysrhythmia – best interests – sedation

Facts: A 61 year old lady was diagnosed with uterine cancer. The National Health Service (NHS) Trust responsible for her care considered that she should undergo a hysterectomy and bilateral salpingo-oophorectomy and lymphnodectomy. Non-surgical treatments were available but there was reason to doubt their efficacy. She suffered from a 40 year history of a psychotic disorder and chronic schizophrenia and (among other things) denied that she suffered cancer or required surgery. It was common ground that she was unable to make informed decisions as to major medical treatment.

The patient suffered marked co-morbidities including superobesity, diabetes and pronounced asthma, all of which increased the risk of serious complications resulting from the surgery. She also had a heart dysrhythmia which created a risk that agitation (such as that caused by fighting physical restraints) might be fatal.

The Official Solicitor, as her litigation friend, considered the proposed surgery too dangerous. The NHS Trust applied to the Court of Protection for approval to perform the surgery.

Held: Granting the application –

1. The Court of Protection is required to make the decision for the patient in her best interests. To assess where her best interests lie, the court must consider all relevant circumstances including advantages and disadvantages.

2. In order to minimise the risk of the patient reacting advsersely to the prospect of surgery, it would be lawful to sedate her before telling her of the operation to be performed, and before administering anaesthesia.

DH NHS Foundation Trust v PS [2010] Med LR 320, [2010] EWHC 1217 (Fam), [2010] Fam Law 927, [2010] 2 FLR 1236, considered.

3. A lymphnodectomy would add to the duration and gravity of the surgery and increased the risks involved. In the circumstances, this element of the surgery was not approved.

Judgment

The Court’s judgment is available here.