The value of going to court

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.

Going to court is not an appetising prospect. But a recent case neatly illustrates how useful (and for the patient, beneficial) this can be.

In the autumn of 2016 HN, a lady in her 50s suffering mental illness, sustained severe shoulder injuries (including a humeral shaft fracture) during an apparent suicide attempt. She refused most treatment that was offered for her injury. Some superficial injuries were healing, but several weeks later her fractured humerus rode up, presumably due to muscle spasm, and protruded through the skin. At this time, the patient was also detained under the Mental Health Act (MHA).

Her surgeon was concerned about sepsis, wishing to explore and debride the wound, with a view to future reconstruction. Meeting implacable opposition from the patient when proposing this surgery, the surgeon and anaesthetist assessed her capacity, explaining what they wanted to do and why, and the risks of both operation and non-operative management. The surgeon found that HN could understand and retain the relevant information, but could not use and weigh it to make a decision as to whether she should consent. She did not engage in discussion, and gave no reason for her consistent refusal of treatment. Other clinicians were in agreement with surgery, as was HN’s sole distant relative.

In this situation, the hospital was unable to rely on the MHA, since this provides authority only for compulsory treatment of diseases of the mind, but no authority to treat HN’s physical plight. In slightly unusual circumstances, the patient was detained for treatment of her mental illness in the same hospital as the proposed operation would be performed, making it legally impossible to treat her under the Mental Capacity Act (MCA). Usually, such patients are transferred from a mental hospital to an acute trust (under what is known as s 17 leave) for surgery. Once in the acute hospital, the s17 legitimises compulsory mental treatment. And the MCA can then be employed to authorise physical treatment if the patient lacks capacity; as well as any necessary deprivation of liberty. For these reasons, amongst others, the hospital sought a declaration from the court that compulsory treatment of HN’s wound was lawful.

With the clinician and family member in agreement that wound exploration was in HN’s best interests, the hospital made an urgent out of hours application to the Court of Protection on a Friday evening, proposing to operate ‘no later than the (Saturday) morning’. The hospital told the court that failure to deal with the current situation might lead to a variant of forequarter amputation, or fulminant sepsis.

The court found, during a telephone hearing, that it was in the patient’s best interests to have this relatively minor operation in order to prevent more serious harm, and authorised the surgery. But it reminded the clinicians that should further surgery be required in due course, a separate application should be made.

It was subsequently confirmed that the surgery took place as planned, the patient going to theatre without objection, restraint or sedation. Nonetheless, microbiology from intraoperative samples confirmed that bony infection was already established.

Robert Wheeler
Department of clinical law, September 2017