DH NHS Foundation Trust v PS

Where an adult lacks capacity to decide about medical treatment, the Court of Protection may authorise treatment that is objectively in the person’s best interests, together with ancillary measures necessary to make it effective. Those measures may include sedation, the use of reasonable force and detention during post-operative recovery, provided the evidence establishes necessity and the risks are properly addressed. The court must consider available alternatives, including less intrusive treatment, and assess the particular risks and circumstances. Ordinary operative risks do not make treatment inappropriate where they are no greater than those faced by other patients. Deprivation of liberty safeguards need not be invoked where the evidence establishes that post-operative detention is necessary and in the patient’s best interests, and the statutory provisions are not required on the facts.

The Trust applied to the Court of Protection for declarations authorising surgery and associated measures for PS, a 55-year-old woman with a learning disability, who lacked capacity to make decisions about her healthcare and to conduct proceedings. PS had endometrial cancer requiring a hysterectomy and bilateral salpingo-oophorectomy. Her hospital and needle phobias had led to failed or refused attendances, and the treating team proposed arrangements involving possible sedation, force to convey her to hospital, and detention during post-operative recovery.

The court considered the medical and community evidence, the appropriateness of alternatives to surgery, the risks of sedation and surgery, the proposed MRI scan, and whether the deprivation of liberty provisions in Schedule 1 of the Mental Capacity Act 2005 needed to be invoked.

1. Best interests and treatment. The evidence established that the proposed hysterectomy and bilateral salpingo-oophorectomy were in PS’s best interests. The usual risks of morbidity did not make the operation inappropriate because they were no greater than those faced by any other patient. Radiotherapy and chemotherapy had been considered but were inappropriate in light of PS’s condition and circumstances.
2. Ancillary measures. The court was satisfied that an MRI scan was inappropriate. Because of PS’s hospital and needle phobias, sedation might be necessary to convey her to hospital if persuasion failed. The Trust had appropriately addressed the risks, including the risk of over-sedation and breathing difficulties. Sedation and the use of force, if necessary, were therefore authorised as measures ancillary to treatment in PS’s best interests.
3. Post-operative detention. The evidence showed that PS might leave hospital prematurely and that detention during recovery was necessary to enable proper treatment, including intravenous fluids, analgesia and monitoring. The court therefore authorised detention in hospital during the post-operative recovery period.
4. Deprivation of liberty provisions. The Official Solicitor submitted that it was unnecessary to invoke the deprivation of liberty provisions under Schedule 1 of the Mental Capacity Act 2005. The court agreed. Since the operation and appropriate recovery were plainly in PS’s best interests, the proposed detention was authorised within the declarations sought.
5. The declarations sought by the Trust were made.