Covid-19: Urgent Care Undeliverable
A Court of Protection judge found that the effects of the current Covid-19 pandemic placed him in an invidious possession.
Notwithstanding that the Respondent, who lacked capacity, required urgent examination and treatment, it was simply not deliverable: University Hospitals of Derby and Burton NHS Foundation Trust (1) Derbyshire Healthcare NHS Foundation Trust (2) (Applicants) v MN (by his proposed litigation friend, the Official Solicitor) (Respondent) [2021] EWCOP 4 Hayden J
The Court was faced with an urgent application concerning medical treatment for MN, who had obstruction in his right kidney which was suspected to be related to bladder cancer.
MN, 60-year-old man, was diagnosed with paranoid schizophrenia and lived in a mental health recovery home.
The Applicants sought, pursuant to the Mental Capacity Act 2005 (MCA 2005) to examine MN and carry out various treatment.
Whilst MN cooperated with an ultrasound performed in November 2020, he had subsequently resisted further investigations. Professionals believed he was following the example of his father who died from cancer having refused treatment.
W, the treating urologist, considered that MN’s symptoms strongly indicated that he had bladder cancer.
If left untreated there was a risk that he would suffer a painful deterioration and may experience a quicker and more unpleasant death resulting from a cancerous growth metastasising.
For the purpose of section 48 MCA 2005, the Court was satisfied that MN lacked capacity.
He had not been informed of the current proceedings and had not had the opportunity to express his wishes or feelings in relation to receiving pain-relieving emergency treatment, as distinct from the primary treatment for suspected bladder cancer.
The Court’s judgment was delivered in the midst of the second wave of the Covid-19 pandemic.
Hospital admissions and the consequent pressure on intensive care units and more generally, presented a challenge for all concerned.
National Cancer waiting times provided that proposed treatment should generally be scheduled within 31 days of a formal diagnosis.
As a result, the Applicants asked the court to list a substantive hearing for 19 January 2021 so that treatment might take place on 21 January 2021.
However, as a consequence of the severe restriction on the number of beds available to elective surgical patients because of Covid-19, the judge was informed that it was unlikely to be possible for the procedure to take place before March 2021.
Enquiries had been made of neighbouring Trusts who found themselves in a similar of worse position.
W explained that in the event that MN had an adverse reaction to the proposed procedure, an ITU bed would not be available because they were fully occupied by Covid-19 patients.
Without knowing the size of MN’s obstruction, it was difficult for the treating clinicians to predict MN’s prognosis without treatment.
In the likely event that MN did have cancer, it would eventually metastasise, if it had not already done so, sadly causing his death.
The hearing considered whether to make an interim order authorising emergency treatment to be delivered by medical professionals, and the likely restraint of MN such a course of emergency treatment would involve.
Clinicians could rely on section 6(7)(a) MCA 2005 and provide life sustaining treatment (between now and the final hearing) and/or rely on section 6(7)(b) and do “any act” which they reasonably believed to be necessary to prevent serious deterioration to MN’s condition while a decision was sought from the court.
Section 4B MCA 2005 authorised steps to be taken which would deprive MN of his liberty if the steps consisted wholly or partly of giving MN life-sustaining treatment or doing any vital act pending a court decision.
Hayden J was clear that it was inconsistent with the principles of the MCA 2005 for the Court pre-emptively to authorise the deprivation of MN’s liberty in circumstances where both the nature of the potential emergency situation could be anticipated, and where MN’s wishes and feelings might be sought and recorded in advance.
The Court directed that the interim order sought by the Applicants was only operative (pending the final hearing) if all of the following conditions were met:
- MN was in pain and/or discomfort and/or unable to urinate;
- MN’s views had been canvassed regarding having emergency treatment (it having been explained to him that such treatment would release him from pain and/or discomfort and/or would enable him to urinate);
- The emergency treatment would include releasing any blood clots in his bladder (or other clinically indicated and operable obstruction) preventing him from urinating;
- MN continued to express a resistance to emergency treatment..
Although the Court was profoundly concerned about the risks for MN of adjourning a decision for so long, it concluded that a final hearing should be listed in the week of 15 March 2021 or 22 March 2021.