(Refusing) Consent for surgery
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.
Two recent cases with similar facts have resulted in different outcomes. ZA was a 53 year old schizophrenic woman who lacked capacity, and would die if she did not undergo an above knee amputation. MT was a 56 year old schizophrenic woman who lacked capacity; she would go blind if she did not have bilateral cataract removal.
Both women refused treatment.
ZA had lived at home with her husband for the past 25 years; developing severe diabetic vasculopathy over a similar period. Since 2013, she had been plagued by chronic osteomyelitis of her ulcerated foot. In 2016, whilst she had capacity, ZA refused amputation. In the year leading up to her case coming to court, she had spent 45 weeks in hospital for treatment of the infection. Some toes had been amputated in 2018 without her consent; at this stage she lacked capacity because of inexorable cognitive decline. She had struggled to cope with the loss of her toes. By 2019, ZA’s husband relayed her long held views on foot amputation; ‘…if she is going to die let it happen, as we are all going to die’. Her son had observed that his mother had been ‘strongly against amputation’. Due to a lack of consensus, ZA’s case was heard in the Court of Protection in April 2021. Her doctors reported that she could not understand the nature of amputation; or the risk of death in the absence of surgery; or the meaning of death itself. The court was told that her foot was no longer connected by bony articulation to the leg, since the talus and calcaneus were entirely destroyed by the infection. The remnants of the foot were held on by skin and ligaments alone. The court found that ZA was not getting better, although may be feeling better because the sensation in her foot was destroyed. And that ‘...she would like to go on living, but would rather die than lose her leg’.
The arguments in favour of and against amputation were expressly addressed in the judgment. The judge noted the persistence of ZA’s originally capacitous wishes not to have amputation, whilst recognising the ‘strong presumption’ that it is in a person’s best interests to remain alive. He noted that this case was ‘...not about someone choosing to die. It is about someone who wishes to take her chances and enjoy what she perceives as the best standard of living, independence and dignity, even if it is for a shorter period’. Accordingly, he concluded that amputation was not in her best interests.
MT had for many years lived in supported accommodation, which remained available to her, providing she could see. Her visual impairment had been noticed during a visit to hospital, when cataracts were diagnosed. She could only see movement. M lacked capacity to consent for cataract surgery, and did not understand that she could not go back to her flat without it. There was no other therapeutic option; without surgery, she would go blind. M initially had been keen to have surgery, but latterly she would not discuss her condition; it had become impossible to engage with her.
The court was told that although M would need to be restrained to go to hospital and for the purposes of anaesthesia, the risks were low and the restoration of her vision would be immediate. The proposed management, if agreed by the court, would be authorised by the Mental Capacity Act 2005.Left untreated, she would likely trip and fall, so could not manage alone in her accommodation. M’s fixed view against surgery was strong; but mutually exclusive with her strong desire to return home. The court heard that M’s family and friends all wanted her to have surgery. And found that if M had capacity, she would want to be independent, to return home, and would agree with her family’s point of view.
Having weighed these considerations in the balance, including the risks of cataract extraction, the court found that it was in M’s best interests to undergo surgery.
These divergent outcomes reinforce what we recognise as clinical reality.
If we are truly to act in the best interests of our patients, we must with great care scrutinise the context and fine detail of each individual’s circumstances; whilst paying anxious attention to their previously expressed wishes and feelings. Although these elements of information may at times be contradictory, they may ultimately provide crucial guidance as to where the patient’s best interests lie. This principle is equally applicable whether exercised in clinical practice, or in a courtroom.
Robert Wheeler
Department of clinical law, September 2021