Capacity and serious medical treatment: University Hospital Coventry and Warwickshire NHS Trust v K & Mrs W

Introduction

This case concerned a young woman, K, who was assessed to lack capacity. K was diagnosed with cancer. The proposed treatment was “complex”, “intrusive” and was described as a “life-altering complexion”.

An urgent application was brought to the Court by University Hospital Coventry and Warwickshire NHS Trust (‘the Trust’). The Trust was seeking an order that K, “lacks capacity to consent to medical treatment for her cancer, and further, that it is in her best interests to undergo a combination of radiotherapy and chemotherapy with the aim of further trying to cure her or at least to provide palliative and symptomatic relief”.

The Court was asked to consider questions of capacity and best interests relating to K.

The facts

On 20 May 2020 K was referred by her local hospital to the Applicant’s University Hospital Coventry. Dr S, Consultant Oncologist, saw K in the presence of her mother (Mrs W) and her stepfather (Mr W).

K was provided with “easy-read literature about her diagnosis and treatment”. Dr S concluded that whilst K was able to understand some of the concepts she was unable to retain them sufficiently well to be able to weigh and evaluate the contemplated treatment.

The Court noted that without the treatment K would die within a year and her death would be painful. Conversely, the treatment “contained a 30-40 % chance of being effective, i.e. there is a 30-40% prospect of her survival for more than 5 years, after which it is considered that she would have a normal life expectancy”. However, the treatment would trigger early menopause and render her infertile.

There was consensus among the treating clinicians that treatment was in K’s best interest. K had also been“enthusiastically cooperative”.

The proceedings

K and Mrs W attended the hearing and both participated.

The Court heard evidence from Dr H, who appeared on behalf of the Official Solicitor. Dr H’s evidence revealed that K had a real understanding that she had a condition, which was “serious” or “bad”, but he did not believe that she understood that it was a condition she might die from. Dr H also stated that that he had informed K that following the treatment “she would not be able to have babies”. The Court “sensed” that Dr H was not completely sure whether K had grasped this information.

Mrs W reiterated what the medical professionals had said.

Despite the broad consensus, the Court stated that the Trust had properly decided this case should come before the Court for three principal reasons:

1. this was a highly intrusive treatment over a considerable period of time;
2. one impact of the treatment involved the premature onset of menopause for a woman in her late thirties who did not have children; and
3. the treatment plan was onerous and there was a distinct possibility that K may withdraw her cooperation to treatment when it became more distressing.

The Court was satisfied that having regard to s.4 (3)(a) and (b) of the MCA 2005, it was highly unlikely K would regain capacity during the course of the treatment and/or before the start of the treatment.

Accordingly, the Court granted the declaration sought by the Trust.

Take away points

The Court commended the approach taken by the Trust and stated, “the advantage of bringing the application pre-emptively is that it allows careful planning in circumstances which may become very difficult”.

The Court further stated that the judgment provided an opportunity to assist Trusts more generally as to the kind of circumstances in which applications should be brought to the Court and referred to the wider guidance available in Serious Medical Treatment, Guidance [2020] EWCOP 2.

This article ‘Capacity and serious medical treatment: University Hospital Coventry and Warwickshire NHS Trust v K & Mrs W’ was written by Naima Asif. To enquire about instructing Naima or any other member of our Court of Protection Team, please contact our clerking team via our switchboard on 020 7353 0711 or email: clerks@pumpcourtchambers.com