Trust A & Anor v H

An adult patient who lacks capacity may lawfully receive treatment without consent where it is in her best interests. Best interests extend beyond clinical considerations and require a careful assessment of medical, social, emotional and welfare factors. The court must balance the likely benefits of treatment against its burdens and consider viable alternatives. Where necessary to provide best-interests treatment, reasonable sedation and moderate restraint may be lawful, subject to careful consideration of proportionality and the patient’s rights under Articles 2 and 3 of the European Convention on Human Rights.

Trust A and Trust B applied under the inherent jurisdiction concerning H, a 45-year-old woman detained under section 3 of the Mental Health Act 1983. H had schizophrenia and delusional beliefs. She refused investigation and surgery for a large ovarian tumour causing pain, breathing difficulties and inability to eat.

The trusts sought declarations that H lacked capacity to decide about her gynaecological treatment, that extensive surgery was in her best interests, and that reasonable sedation and physical restraint could lawfully be used. The central issues were capacity, best interests, and the lawful management of resistance to treatment.

1. Capacity. Applying the criteria stated in Re C [1994] 1 WLR 290 and Re MB [1997] 2 FLR 246, a person lacks capacity where an impairment or disturbance of mental functioning prevents comprehension and retention of material information, or prevents the person from using and weighing that information in reaching a decision. A compulsive disorder, phobia or delusional belief may so distort judgment that the apparent decision is not a true one.
2. H’s schizophrenia, entrenched delusions, failure to appreciate the seriousness of her condition and inability to weigh the consequences of refusing surgery established that she lacked capacity to decide about treatment of her ovarian cyst and gynaecological condition.
3. Best interests. The court was required to reach its own conclusion after considering medical, social, emotional and welfare factors. It had to assess the advantages and disadvantages of the available treatment and management options, their viability, their likely effect on H’s life, and the additional suffering treatment might cause. The positive, though not absolute, obligation to preserve life under Article 2 was considered in accordance with the observation in R (Burke) v General Medical Council [2005] EWCA 1003, subject to human dignity.
4. The evidence established that surgery was the only feasible means of relieving H’s deteriorating condition and offered substantial benefits, while the expected anxiety, pain, temporary distress, menopausal symptoms and loss of fertility could be managed. Surgery was therefore in H’s best interests.
5. Where treatment is in the best interests of a patient lacking capacity, reasonable sedation and moderate, reasonable physical restraint may be used to overcome resistance. Such restraint must form part of the overall benefit-and-burden assessment and must respect Article 3. The declaration did not authorise forcible chemotherapy if H later refused it; that issue would require separate consideration, potentially by the court.