Abandoning hope

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

TC was 69 when she presented with a supraglottic laryngeal cancer, affecting both her breathing and swallowing. She had retired only recently, having worked as a shop assistant. For many years TC had taken antidepressants and suffered prolonged anxiety, but nevertheless ran her household and the family finances. She stopped her medication once the cancer was diagnosed. Whilst she awaited that diagnosis she was regularly reviewed by a cancer nurse specialist, and with her support, made a capacitous decision to be treated with chemoradiotherapy, with the intention to cure.

Two days later, TC and the nurse specialist spoke and she appeared confused, with higher levels of anxiety, although this was not unexpected in the circumstances. Over the next month, her mental health declined and she was unable to discuss her treatment rationally. Investigations with which she cooperated revealed the imminent risk of airway obstruction. Alarmed at the increasing threat to TC’s life, the hospital (supported by her family) sought a court declaration that in the absence of her capacity to make these decisions, medical treatment (and the associated restrictions on her liberty) could be provided.

A forensic psychiatrist confirmed TC’s severe depression, and that she was able to understand and retain information related to diagnosis and treatment. However, the anxiety and depression led TC to (wrongly) regard her situation as hopeless; this was described to the court as ‘catastrophic thinking’, rendering her unable to weigh the information with which she had been provided in order to make a capacitous decision. It seems possible that stopping the antidepressants may have contributed to TC’s deterioration. The psychiatrist concluded that TC lacked capacity to make decisions about her medical treatment.

The court noted that prior to the progression of her mental illness TC, possessing capacity, had provided consent to chemoradiotherapy. Whilst preparing for the court hearing she had been visited by the Official Solicitor’s agent. TC told him that she did not think there were prospects of successful treatment; when asked what would happen with no treatment, she responded “I’ll just die”. By contrast the head & neck surgeon treating the patient laid out to the court options of both laryngectomy/bilateral neck dissection and chemoradiotherapy as each offering TC a 60% chance of 5 year survival. Her oncologist in written evidence noted that chemoradiotherapy was considered a better option than surgery for TC, taking into account the nature and stage of her tumour whilst preserving her larynx. Since there had been a delay in the treatment plan, and TC’s tumour had grown since presentation, the court was told of a plan to reduce the tumour bulk with a microdebrider, laser or vaporization. Henceforth, chemoradiotherapy. Failure would necessitate tracheostomy, which all involved recognised as not something that TC would want, but ‘needs must’ should that become necessary.

Having taken into account TC’s views, the judge heard from her family. Her adult son told the Official Solicitor that his mother ‘...most certainly doesn’t want to die. She has a perfectly happy life - she is not long into retirement; this has hit her, and she’s gone downhill, her anxiety has gone through the roof.'

The court concluded that TC lacked capacity to make a decision about her medical treatment, and that she was unlikely to regain capacity within the relevant timescale. Satisfied that the proposed intervention was the least restrictive option, despite the significant risk and frequency of side effects, the court was pleased to note that the treatment would be supported by liaison psychiatry. The necessary legal provisions were made.

This is a case that demonstrates a pattern that we often see where a grave diagnosis derails a patient’s fragile health. In particular, it shows the corrosive effect that heightened anxiety can have upon a person’s usually-rational assessment of their situation, leading to ‘catastrophic thinking’, abandonment of hope and consequent loss of capacity.

Robert Wheeler
Department of clinical law
December 2020