Intervention on Medical Treatment
The Court of Protection has been asked to step in to sanction treatment for a mentally incapacitated patient suffering with cancer. The patient had a phobia of needles and hospitals which meant that it may be necessary to sedate her by spiking her drink as the only means to ensure she received life saving treatment.
The Court decided it was in her best interest to receive this treatment which would have to be given forcibly if necessary, but it is unusual for the Court to make public a decision it has been asked to make in these circumstances. The court decided to do so in order to help others who face a similar dilemma.
The case has been widely reported, including reports in the national press and television news, for example, in the Daily Telegraph and on BBC News on Thursday 27 May 2010. It has also sparked debate among professionals as to the need to resort to the court in a case such as this. Where there is disagreement as to what is in a patient’s best interest, or where there is uncertainty about the patient’s capacity, it is not unusual for the Court to be asked to decide. In this case, unlike many which need to go to court, all parties involved in the individual’s care appeared to agree that the surgery was in her best interest and accordingly it could be argued that the hospital doctors were in a position to proceed without the authority of the court.
The last government introduced the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DOLS) which were intended to assist doctors who were required to treat and detain a patient who lacked capacity for reasons other than in connection with their mental health. It has been commented that the MCA should have enabled the treating doctors to proceed without referring the matter to court and suggests that doctors are now cautious in making decisions about treatment which they would otherwise have made before the MCA was brought in. In this case the Judge decided that DOLS were not necessary following the surgery to continue to treat the patient in recovery, but it seems that this was because the court could authorise this for the relatively short duration required.
It will be interesting to see if this results in more cases being brought before the court or whether in cases of agreement, doctors will now feel able to proceed with treatment where it is plainly in a patient’s best interest.
Case Citation DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam)