Capacity to consent to chemotherapy?

1 July 2020 by

University Hospital and Warwickshire NHS Trust v K and another [2020]  EWCOP 31

This case is a timely illustration of the unenviable task faced by judges, doctors and mental health professionals during Lockdown.

This judgment was delivered following a remote hearing conducted on a video conferencing platform of an urgent application brought by the University Hospital Coventry and Warwickshire NHS Trust. In this final hearing, held remotely, the Trust have asked the Court of Protection to consider questions of capacity and best interests relating to a young woman named in this judgment as “K.”

K, the patient, was 36 years old and lived in secure accommodation. She had never been formally assessed but had been to a special needs school and was recognised as having learning difficulties. In late May she was diagnosed with cervical cancer. In this application, the Trust sought an order declaring that K lacked the capacity to consent to the medical treatment for her cancer and further, that it was in her best interests to undergo a combination of radiotherapy and chemotherapy with the aim of trying to cure her or at least to provide her palliative and symptomatic relief.

The judge noted consensus amongst the treating clinicians both in respect of K’s capacity to understand the treatment and that receiving the treatment would in K’s best interest. K’s mother agreed. But the application had been properly brought before the court. Firstly, because the proposed treatment was highly intrusive, secondly it involved the premature onset of menopause, but most importantly because the treatment plan was so onerous that there was distinct possibility that K might withdraw her co-operation from it as it became more challenging.

As Hayden J observed, K was a young woman who had an understanding that she had a condition which was serious or bad, but he did not believe that she understood that she might die from it:

although K has heard the word, “cancer,” it had not sunk in that this is a life – threatening condition. The judge accepted the expert evidence to the effect that “K can understand words and concepts to a degree but cannot retain them to evaluate them so as to be able to use or weigh them. In these circumstances she lacks the capacity to consent to medical treatment.”

It was with “very little hesitation” that the court concluded that K did not have the capacity to evaluate the necessary decision in relation to her medical treatment. Hayden J granted the hospital’s application and commended the pre-emptive approach taken by the trust, which was to commence chemotherapy treatment on the 30th of June 2020.

News just in: The UK’s Nightingale hospitals will be converted into cancer testing centres from next week to help deal with the growing backlog in testing.

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