DH NHS Foundation Trust v PS (by her Litigation Friend the Official Solicitor) (2010) [2010] EWHC 1217

PS, who is learning disabled and suffers from a phobia of hospitals and needles, was diagnosed with cancer of the uterus. Having obtained an independent report from a consultant psychiatrist specialising in those with learning disabilities that PS had neither the capacity to make decisions in respect of her health needs or litigate, the NHS Trust sought a declaration from the Court of Protection that the treatment it proposed, namely a hysterectomy and bi−lateral salpingo−oophorectomy (the removal of her ovaries and fallopian tubes) was lawful. Under the Court of Protection practice direction E where a NHS Trust is proposing serious medical treatment they are required to put the matter before the Court. In doing so in this instance the NHS Trust also requested a declaration as to whether they could use sedation, if necessary, to convey PS to the hospital and carry out the surgery.

The Judge accepted the evidence of the consultant gynaecologist that without the surgery PS’s cancer would inevitable spread and cause her death. The community sister linked to the Mental Health Team gave evidence that she had developed a relationship with PS and may possibly be able to pursued her to undergo the surgery, but that failing this it would be necessary to sedate her to ensure she attend the hospital for the treatment. The judge, satisfied that those treating her had properly assessed her best interests and that the proposed treatment was in line with these despite ‘the usual risks of morbidity’, confirmed that the powers to restrain under s6 MCA were sufficient authority to enable an NHS Trust to, with s5 MCA immunity, sedate an incapacitated patient so as to convey her to hospital to undergo life saving surgery.

What is surprising in this case is the Judge’s conclusion that the post operative care did not require authorisation under the DoLS procedure. Evidence from the consultant anaesthetist set out that the Trust planned to ensure she received appropriate post operative care through the combined use of analgesic medication (administered in a way that would prevent her from removing the tubes), close monitoring by nursing staff and ultimately the use of force when necessary to ensure she did not abscond. The Official Solicitor put forward the argument, which the Judge agreed with, that this would not amount to deprivation of liberty but rather could be seen as a mere restriction and therefore lawfully under s6 MCA as it was necessary to prevent harm to PS and was a proportionate response to the likelihood and seriousness of that harm.

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