Alex RKThe decision of Lieven J in East Lancashire Hospitals NHS Trust v PW [2019] EWCOP 10[1] is of importance for its reminder of the obligations on treating hospitals where an application may need to be made in relation to medical treatment. It also of real interest as regards the application of a “will and preferences” approach to best interests decision-making.
The timing of the application
For 9-12 months from the middle of 2018, it had been recognised by the treating team that an application might need to be made in relation to PW, a 60 year old with paranoid schizophrenia, to address the consequences of a diabetic infection in his foot. By mid-February 2019, the application was being prepared. It was then lodged with the court on 12 March (the Official Solicitor receiving the draft application at around 4:00 pm on that day) on the basis that the application needed to be considered within one day and an operation required to address the high risk of sepsis within 48 hours. Lieven J heard the application on 13 March, but – understandably – observed that:
5. […] this application could and should have been made some weeks ago, even if at that stage it was on a slightly more precautionary basis. The effect of the delay has been detrimental to PW’s interests and to a fair process which could fully take into account his wishes. The timing of the application has meant that the Official Solicitor had no time to visit PW and discuss the operation and his views with him; it has meant that there has been no time for the Independent Mental Capacity Advocate (IMCA) to visit him before the hearing , the last visit was in July 2018; and the OS has had no time to instruct an independent doctor for another opinion if he had felt one was justified.
5. Although I spoke to PW over the phone, in order to try to understand his wishes and feelings, it would have been much better for the Court and PW if the OS had been able to visit him and prepare a report for the Court. The delay in making the application has therefore been contrary to PW’s interests.
Lieven J considered that it had been possible to achieve a fair process, not least because her view was ultimately that the decisions she had to make were fairly clear-cut, but “this application should have been made weeks ago.”
Lieven J expressly endorsed the guidance given by Keehan J in NHS Trust v G [2014] EWCOP 30 and Baker J in A University Hospital v CA [2016] EWCOP 51 as to the need for timely applications, expressly endorsing the annex to the judgment in G as to the steps that need to be taken. She noted that, as in CA, the Trust was to carry out an investigation into the delay and provide the court and the Official Solicitor with the outcome.[2]
The substantive decisions
Lieven J had little hesitation in finding that PW lacked capacity to decide whether to have his foot amputated. He was, she found, delusional in his belief that his foot could be treated by antibiotics and that his GP surgery could heal his foot (indeed, the IMCA report prepared in July 2018 recorded him referring to a belief that his toes could grow back, in circumstances where said he did not have diabetes and that his leg was not infected).
As regards best interests, Lieven J considered that the medical evidence was overwhelming that if PW did not have a below the knee amputation in very short order then certain consequences would follow. Either the infection would spread and he would need a much more debilitating operation and in a worst case scenario die from sepsis spreading before it can be controlled; or in a best case there would be a brief improvement from the IV antibiotics but his foot would inevitably become infected again. She further accepted the medical evidence that if he did have the operation, there was a good prospect that he would be able to cope well with the prosthetic leg below the knee.
Importantly, Lieven J was:
32. […] very aware of the fact that PW is strongly opposed to having an amputation. This is based at least in part on having had the previous amputation and not wanting an operation. Those are perfectly understandable feelings that would be shared by many. However, the medical evidence shows that PW is either going to have to have an amputation, or the infection will spread and he will die (though in an uncertain time frame). In my view, following Peter Jackson J in B [[3]it is appropriate to give weight to PW’s wishes and feelings, even though he does not have capacity, and given that those wishes are clearly expressed, strongly and consistently held, give them considerable weight. However, unlike B, PW does not want to die. He does not understand the choices he faces – be is labouring under a delusion that there is an alternative, namely IV antibiotics, which the medical evidence shows will not solve or materially alleviate the condition.
33. PW is a 60 year old man, so significantly younger than Mr B, and who if he has the below the knee amputation has a good prospect of regaining mobility, and indeed be in better physical health than he has been in the recent past. I also do not think, though I cannot be totally confident on this, that PW’s opposition to the operation is as deep seated, or as fundamental to his dignity, as was Mr B’s. I am therefore hopeful that the impact of him having the operation, albeit against his wishes will not fundamentally undermine his dignity and his independence .
Lieven J therefore reached the clear conclusion that it was in PW’s best interests to have the operation.
Comment
One hopes that the investigation into the delay will be published as a follow-up to the judgment, as, on the face of it, Lieven J appears to have been entirely justified in her criticisms. What is particularly important about them was the extent to which they recognise that the fact of the delay both prejudiced the Official Solicitor (and hence the court) in terms of potential investigations, but also, more significantly, risked denying PW a fair crack of the whip in terms of participation in a decision of such moment to him. There is a significant body of research which highlights how much worse it is for a person who has been subject to (benign) coercion not to have been able to have any say in the process underpinning that coercion. One would like to hope that the fact that Lieven J was able to speak directly to PW went some way to remedying this aspect of the problem, but the emphasis here is on remedying; it was in reality no proper substitute for proper participation from a much earlier stage.
As regards the substantive best interests decision, the contrast that Lieven J drew with the Wye Valley case is of some interest. For myself, I am not sure that I would necessarily have identified Mr B as actively wanting to die – as he told Peter Jackson J: “I’m not afraid of dying, I know where I’m going. The angels have told me I am going to heaven. I have no regrets. It would be a better life than this.” In any event, however, Lieven J was clearly right to identify that this appeared to be a qualitatively different position to that of Mr B – PW appeared clear that he did not want to die, but incapable of appreciating both that his refusal was making that prospect very much more likely, and that his chosen means of trying to secure his life were simply going to be ineffective (insofar as anyone can ever predict anything in medical science).
Framed in CRPD terms, this case could therefore be seen as an example of the tension between a person’s will and their preferences,[4] and a situation in which it is both legally and ethically right to override a person’s preference to secure their will.
[1] Note, this initially had a very odd citation, but has now been corrected.
[2] Note, no report of the investigation in CA’s case ever seems to have been published by the court.
[3] Wye Valley NHS Trust v B [2015] EWCOP 60
[4] See here, in particular, the writings of George Szmukler: http://georgeszmukler.org/2015/10/about-george-szmukler/.
