Judge orders that patient be operated on against her will

3 June 2010 by Elspeth Wrigley

DH NHS Foundation Trust v PS (by her litigation friend, The Official Solicitor) [2010] EWHC 1217 (Fam) – Read judgment

The head of the Family Division, Sir Nicholas Wall, has ordered that a woman with learning disabilities be forced under sedation to undergo surgery in order to save her life.

This case brought to the fore the complex balance between allowing those who lack the capacity the autonomy to make decisions about how they wish to live their lives, and enabling the State to step in when such decisions are not only unwise but actually life threatening.   It treads a delicate path between a number of human rights, in particular Article 2 (right to life), Article 5 (right to liberty and security) and Article 8 (right to privacy).

The judge in this case, Sir Nicholas Wall (President of the Family Division) made the unusual decision for the case be reported in the light of its public importance, and to assist others faced with the same situation.

Unable to make decisions for herself

The case concerned a woman, known only as “PS”.  She suffered from a learning disability which significantly impaired her intellectual functioning to the degree that she was not considered to have the capacity to make decisions about her healthcare and treatment. As she was also unable to bringing legal proceedings herself the matter was brought on her behalf by the Official Solicitor, who acts for people who cannot manage their own affairs.

The matter arose when, on 17 August 2009 an ultrasound scan revealed evidence of 43mm x 39mm mass in PS’s uterine cavity. A hysteroscopy performed under general anaesthetic in November showed evidence of a large tumor in the uterus which obliterated the uterine cavity and extended through into the cervix.  In short, PS had developed cancer of the uterus.   The tumour was growing slowly, but unless PS underwent a hysterectomy and removal of the fallopian tubes and ovaries, the tumour would spread and eventually kill her.

Fear of hospitals

PS, however, suffered a severe phobia of both needles and hospitals. Even though PS has on occasion agreed to undergo the operation, she had until now failed or refused to attend hospital for treatment. Despite sustained attempts by the learning disability community sister (who knew PS and her family well) to persuade her to go to hospital, she refused to go. Unfortunately, alternatives to surgery (radiotherapy and chemotherapy) would have been unsuitable.   Furthermore, there would have been no way to prevent PS leaving hospital after the operation when it was still unsafe to do so.

The clinical team treating PS reached the reluctant conclusion that special arrangement needed to be put in place to ensure that PS attended hospital for the operation and did not leave prematurely after it had taken place. The plan they proposed was for a consultant anaesthetist to travel with the ambulance crew to PS’s home and, if PS refused to attend hospital, for her to be given a dose of sedative mixed with a soft drink such as Ribena.  Following the operation PS would have a plastic cannula inserted in order to administer intravenous fluids and analgesic medication, bandaged in such a way so that PS could not pull it out.  She would also be given analgesic medication which would have a sedative effect on her, making it unlikely that she would be able to abscond.

The court was satisfied that the hospital had fully addressed all the risks associated with this plan, so the decision for the judge was whether a plan – to sedate PS against her will and without her knowledge if she refused to attend hospital, and continuing to sedate her until it was safe to leave – could be justified.

In her best interests

It was Sir Nicholas Wall’s view that the plan could be justified. He said

In conclusion I am entirely satisfied that it was right to make the declarations sought by the Trust, and although the application is unusual and may involve the use of force, I am nonetheless impressed by the care and thought which have gone into ensuring that PS receives the treatment which she plainly needs, and which it is plainly in her interests to have.

Given PS’s condition generally, combined with her phobia of hospitals and needles, the usual procedure simply would not work, and there were no viable alternatives to treat her. The judge was in no doubt that it was in PS’s best interests to undergo the operation to treat her cancer. While there was the usual risk of morbidity, there was no greater risks than usual,  and if no operation took place PS was almost certain to die.

On this basis the judge took the quite dramatic step of authorising the sedation of PS, without her consent if necessary, if she refused to go to hospital.

Read more:

• More posts involving medical law
• Stuart Andrews writes in the Guardian: “In seeking to protect patients from benevolent but paternalistic doctors who may intuitively disagree with their patient’s choices, it is important that the legal response to this Foucauldian conundrum the rules are clear, coherent, applied universally and transparent. Sir Nicholas Wall’s decision to open these closed doors should be welcomed.”