11 May 2021
Considerations of Consent, Capacity and Best Interests
Imagine the following scenario. A patient, known to have mental health issues, has been consenting to a proposed or potential course of medical treatment. Then, as the need to embark on that treatment crystalizes and becomes urgent, consent is withdrawn. The treatment proposed is considered necessary to avoid a potentially fatal outcome for the patient. What does the hospital do? How can it best serve the patient and by so doing seek to prevent an adverse outcome, and indeed avoid the spectre of resultant litigation?
Just such a scenario was faced by the medical staff in East Lancashire Hospitals NHS Trust v GH  EWCOP 18. Whilst the particular case was considered within an obstetrics context, the considerations which applied are just as likely to have arisen within any other medical context, particularly where major invasive treatment or surgery is required.
GH suffered from severe anxiety, depression and acute agoraphobia. Consequently, during pregnancy she found it difficult to leave the “safe space” of her own home, had not left her local area and had declined all routine ultrasound and growth scans. At a time when there were no concerns about her capacity to make such decisions, she had elected to have a home birth but had confirmed that she agreed to a hospital admission should it be required.
Once labour commenced GH developed an obstructed labour and the medical opinion was that she required urgent in-patient obstetric treatment and a possible emergency caesarean section. At this stage, GH refused to agree to this course of action. A capacity assessment was hastily arranged by a Specialist Perinatal Community Mental Health Midwife which concluded that, at that time, she lacked capacity to decide whether to agree to hospital admission. The Official Solicitor became involved on GH’s behalf and agreed that it was in her best interests to be taken to hospital.
An urgent out of hours application to the Court of Protection was made seeking a declaration that GH lacked capacity in relation to the issue relating to admission and treatment, an order that admission and undergoing specific treatment on medical advice was in her best interests, an order allowing proportionate and reasonable measures, including sedation, to effect the admission and treatment if required such as would amount to a deprivation of her liberty, and a declaration that such an order was not inconsistent with GH’s Article 8 rights.
Within the specific context of an explicit refusal to provide consent in relation to medical treatment and a refusal to agree to admission, the Court had to address the issues of GH’s capacity to make decisions as to admission and treatment and, in circumstances where the presumption of capacity was displaced, a determination of what was in her best interests.
MacDonald J’s judgment contains at - a very helpful summary of the relevant principles derived from the 2005 Act, as considered and previously summarised by him in the earlier case of Kings College Hospital NHS Foundation Trust v C and V  EWCOP 80 in relation to determining the issue of capacity, and its application to the particular facts.
He also provides helpful analysis of the “best interest” determination, having regard to section 4 and the subsequent case law. Whilst the decision made is inevitably highly fact and case specific, the judgment provides an authoritative restatement of the principles relevant in this arena and is of general application.
MacDonald J, whilst appreciating the gravity of the requested course of action nonetheless found that the Trust had discharged the heavy burden of demonstrating that GH lacked capacity in relation to a decision about admission and treatment in circumstances where her agoraphobia, anxiety and depression were preventing her from using or weighing information in deciding whether to agree. He further found that it was in her best interests to be taken to hospital by ambulance and for the medical and midwifery practitioners to carry out such treatment as was necessary for the management of her pregnancy and delivery. The full order made is appended to the judgment and might be useful as a model draft order for such applications made in the future.
Discussion and Considerations for Clinical Negligence Practitioners
To be valid, consent for medical treatment must be informed (as per Montgomery) and given by a person with capacity to consent. Capacity or a lack thereof, as determined by reference to the principles contained in the Mental Capacity Act 2005, is well understood to be a time and issue specific question. Once capacity in relation to a specific decision, at a specific time, is found lacking, a determination as to what is in the person’s “best interests” must be made having regard to section 4 of the 2005 Act. This involves a consideration of “all the circumstances of the case” and is not confined to a consideration of only what is in the best medical interests of the patient. The court’s consideration will be wider than that. However, it seems explicitly not to extend beyond the patient, such that it does not allow a consideration in this context for example of what may be in the best interests of the patient’s unborn child. One can envisage scenarios where a tension might exist between the patient and another.
It is of note that the MacDonald J’s decision, allowing the enforced admission and subsequent treatment of GH, was consistent with what she had been willing to agree to should the need arise, at a time when there were no concerns about a lack of capacity. Bearing in mind the principles within the 2005 Act, one wonders what the outcome would have been had this application been made (due to refusal to consent and concerns about her capacity) against the background of GH having explicitly indicated that she would decline future admission and treatment at a time when she was accepted to have capacity.
The real practical learning point from this case is that medical practitioners and those who advise them, must be continually alive to the need to ensure that consent or indeed the refusal of consent is not only fully informed but is given (or refused) by a person who has capacity at that time and in respect of that issue. Any concern as to lack of capacity needs to be anticipated and then assessed as soon as possible to ensure that there is a proper opportunity for consideration, reflection, advice and, if necessary, application to the Court. A secondary learning point is perhaps related to the willingness of the Court to consider GH’s various conditions, not classic mental illnesses as regards to impact on capacity, as being sufficient, at the time and more particularly on the specific issue, to rebut the statutory presumption of capacity.
As a happy post-script, despite the medical concerns for GH and the unborn child and despite the order for enforced admission and treatment, in the event she was able to give birth in the security of her own home and did so without untoward incident. Her previously troublesome labour progressed rapidly and there was no time for the necessary arrangements to be made.
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