What Happened

P was 26, and was at end-stage renal failure, and needed inpatient treatment for dialysis. He also had a severe personality disorder, with a history of suicidal tendencies.

In July 2020 he refused dialysis treatment for a ‘significant period of time’, which resulted in a near cardiac arrest. He had also stopped taking his medications and refused blood tests, which meant that doctors did not have access to key medical indicators surrounding his overall health.

In August, the Court sanctioned a regime of coerced dialysis, which involved chemical and physical restraint, in his best interests.

After the Court sanctioned these measures, there was a period where P complied with his medical treatment, without the need for any restraint or coercion. 

Consequently, presumably because he started to resist again, the NHS Trust formed the view that although he lacked capacity a lot of the time, the Court order was no longer in P’s best interests. It sought a declaration that it would be in P’s best interests to provide dialysis only when he was co-operative, but to provide palliative care if he refused.

What was found

The Trust asked for the case to be heard the following week. This meant that the Court would have had to have let the original order stand (the coercive dialysis treatment), whilst knowing that the Trust no longer considered it to be in P’s best interests. Or, it would have to make an order for the interim period, without hearing the evidence, which it stated it was not prepared to do. Therefore, the case was heard immediately.

The critical care consultant found it distressing to recount P’s resistance to treatment, and the measures they had had to take in restraining him. Multiple members of staff were required to hold P’s limbs before sedating him, which was considered by all to have seriously compromised his dignity. It would not have been nice for them either, but the point is that an incapacitated person is entitled to receive care even if they are resisting. Their need is not able to be severed from their incapacity; it is not their capacitated choice to resist.

It was noted that some days P was able to supress his suicidal thoughts, and therefore accepted treatment in order to live, but sometimes he became so overwhelmed that he wanted to die, so then resisted dialysis.

The judgement mentioned that P had a seven-year-old son, with who he had a ‘loving, joyous relationship’. It was highlighted that P’s son, in certain circumstances, was the only reason he wanted to go on. The judgement made no other reference to the son, or consider what may be in his interests.

The Trust was seeking a declaration to reflect the fact that it would be in P’s best interests to give him dialysis when he was co-operative, but if he refused the trust would accede to his resistance and provide palliative care. If he refused treatment, death would likely follow within hours or a few days.

A central question was whether P appreciated the risks.

For P, the situation was a utilitarian calculation of risk: on the one hand death, on the other hope. The trust wanted guidance from the court that they were doing the right thing, or whether his dignity was now so compromised (by the traumatic process of restraint and sedation) that it was wrong to pursue that current treatment plan. That treatment plan did, however, give P a chance of living.

The Court stated that it could not envisage any circumstances where the already sanctioned regime would go against P’s wishes and feelings. It highlighted that it was clear that a psychological care package was key.

Therefore the Court refused to grant the NHS Trust that it would be in P’s best interests to provide dialysis only when he was co-operative, and to provide palliative care if he refused treatment,

The Court endorsed proposal for an interdisciplinary meeting to join the dots between P’s psychological and physical challenges.

The reference is  [2020] 8 WLUK 254