Expert Witness Journal Dec 24 - Journal - Page 44
Serious Medical Treatment
Applications - When to Prioritise
Speed Over Detail?
If an NHS treating team believes that it probably won’t be possible to investigate P for potential
cancer, do they need to apply to the Court of Protection to obtain an order not to investigate? At
what point should the application to Court be made: when they have a consensus view or clear
dispute, or when the concern first arises?
ing the matter before the court", urgently. It was noted in
particular that if cancer is diagnosed at an early
stage, it is more likely to be treated successfully (even
though in this case, the outcome would not have
been different).
Mr Justice Cobb has provided his views in the recent
case of PG (Serious Medical Treatment1). We distil the
key findings here.
Analysis
P had severe schizophrenia and opposed all medical
interventions. She was detained under the Mental
Health Act in a psychiatric hospital. In 2023 P was referred to an acute hospital gynaecology team under
the 'two week wait' (cancer referral) process, because of
a growth which had been found along with irregular
vaginal bleeding. P attended to see a gynaecologist,
but refused an examination. P did not attend further
appointments.
2. ‘Perfect may be the enemy of good’. When it was clear
that the clinicians could not agree on a plan to facilitate the recommended investigations in a timely manner, in his judgment, the application should have been
made. He noted that it was not necessary to have a
"fully worked up care plan in relation to the investigations" and that the Court can then direct the necessary witness and expert evidence. In practical terms,
rather than a proposed care plan for investigations,
the treating team would need to set out; this is how
we would usually investigate and how quickly, and
these are the barriers to doing that in this case.
The hospital were concerned that she may have a gynaecological cancer, and hoped that further investigations might rule that out. They held several best
interests meetings to discuss possible investigation
plans with the specialist mental health team. The clinicians found it difficult to determine a treatment plan
which was in P's best interests: any medical investigation against P's refusal would likely cause a deterioration in P's mental state, requiring readmission to
hospital under detention and jeopardising the imminent plans for discharge into the community from the
psychiatric unit.
DACB recommendations
Deciding when to make an application to Court is
often a fine line to tread: the NHS Trusts will want to
make an application for a decision as soon as possible,
but equally, will want to ensure they have explored as
much of the relevant complex medical detail as possible first (including to have clarified what their application is asking the Court to do). An application
without evidential substance can also lead to public
criticism, and can result in lengthier (and costly) court
proceedings.
It became apparent that the serious medical treatment
options for P were so finely balanced, that the case required an application to Court. The NHS Trusts
made a joint application to Court.
This judgment sets out the Court's view that, where a
case may require urgent medical treatment, Cobb J
prioritises urgency over detail. There is still an element
of balance to be struck and unfortunately, each case is
different and requires its own balancing exercise.
Outcome
Having considered all of the evidence, Mr Justice
Cobb determined that it was lawful and in P's best interests not to investigate P's potential cancer. He noted
that "P's psychiatric and gynaecological conditions are plainly
complex and severe; the intersection between the two is fraught
with difficulty". He concluded that forced investigations
would cause a significant deterioration in P's mental
health, and that P probably would not comply with
any subsequent cancer treatment in any event. Instead a palliative care plan was agreed.
In essence, where the necessary treatment may be
urgent, the application to Court needs to be made
urgently. We recommend that relevant treating teams
are made aware of this principle, so that they escalate
appropriate cases quickly to their legal team.
How DACB can help
Our team of specialist health law solicitors are always
available to discuss tricky issues or potential cases that
you may have. We welcome early discussion and can
help you to spot the red flags in possible Court of
Protection cases.
Guidance on the timing of future applications
In his judgment, Cobb J stated that:
1. Where cancer is suspected and P may lack capacity
"Hospital Trusts should not hesitate one moment before bringEXPERT WITNESS JOURNAL
42
DECEMBER 2024
