Case Commentary: NHS Foundation Trust v QZ [2017] EWCOP 11

The Background:

The patient in this case, QZ, was a woman in her 60’s who had been suffering from postmenopausal bleeding for over a year. The cause was unknown, however there was a high risk (30-50%) that it could be a form of gynaecological cancer.

QZ lacked capacity to make decisions in relation to her own treatment on the basis of her long-standing diagnosis of chronic, treatment resistant, paranoid schizophrenia. She also suffered from auditory hallucinations. From a young age, QZ had been known to mental health services. QZ was frequently admitted into hospital and had lived in residential care for many years.

QZ’s family included her four brothers. However due to her condition she refused to recognise them as such. QZ had also been married in her youth although contact with her husband had ceased long ago. As such, the family had limited input into what would be in QZ’s best interests.

The Application:

An NHS Foundation Trust applied to the Court of Protection for an Order permitting them to carry out a hysteroscopy and endometrial biopsy under general anaesthetic on QZ to identify the cause of her ongoing bleeding. If QZ was found to have a cancerous tumour, or abnormal pathology then the Trust required authority from the Court of Protection to carry out an urgent keyhole hysterectomy under general anaesthetic and endorse the proposed care plan for QZ which would require her to be transferred from her residential care home and into hospital for treatment and post operative care until discharge. This would be a serious operation and a drastic change for QZ.

QZ had for several months attempted to conceal her symptoms. Eventually QZ attended a hospital appointment where an external examination and scan were carried out. However QZ refused, despite sensitive and cautious persuasion from her carers, to return to hospital for more invasive internal investigations. QZ had a deep-seated long standing and entirely delusional belief that she was being poisoned by her carers and doctors and that she was at risk of being raped by them.

Following the application, the Official Solicitor was appointed to represent QZ and uphold her best interests. The Official Solicitor found this to be a very difficult case, and were unclear on what their position would be, given that the treatment proposed was so intrusive. There was no doubt it carried a significant risk on QZ’s mental health and would remove her from the stable and comforting environment of her residential care home.

The judgement by Mr Justice Hayden:

Mr Justice Hayden considered and reviewed the extensive medical evidence put before him from a Consultant Forensic Psychiatrist, a Consultant Gynaecological Oncologist and Laparoscopic and Robotic Surgeon. In particular Mr Justice Hayden considered the overall 5 year survival rate of 79-82% for all endometrial cancers based on its prognosis, stage, grade and histological type. However, in case reports of patients who declined surgical treatment, survival varied from a few months to a few years.

On the evidence, QZ was presenting with symptoms typical of the most common cancer, cancer of the womb, and the procedural guidelines advise immediate referral of any postmenopausal patient.  A year had already passed.

However Mr Justice Hayden also recognised that authorising the Order requested by the Trust would result in coercion of QZ and a degree of force.

Ultimately the judge had to decide whether an inevitably serious and potentially prolonged collapse in QZ’s general mental well being, “weighed more heavily in the balance than the potential benefits involved in investigating the possibility of cancer” and loss of life.

Baroness Hale in Aintree v James, had set out the proper approach decisions makers should take. All relevant factors must be considered, including the patient’s welfare in the widest sense to include medical, social and psychological welfare. Further “they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.

Mr Justice Hayden relied on the clearly established approach of evaluating P’s best interests under s4 of the Mental Capacity Act 2005. As such, Mr Justice Hayden could not discount QZ’s views merely because they were delusional or irrational especially as they were real to QZ. However he also took into account QZ’s resilience, her ability to fight back and the prospect of many healthy years ahead of her.

As such the NHS Trust were granted permission to proceed.

This case demonstrates the challenging and niche nature of cases brought before the Court of Protection to determine often tricky and intrusive health and welfare matters. It is an incredibly difficult task to determine the best interests of those lacking capacity and the Court will continue to consider all factors set out in s4 of the Mental Capacity Act and apply them to the individual circumstances of each case.

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