University Hospitals of Derby and Burton NHS Foundation Trust v J (by her litigation friend, the Official Solicitor) [2019] EWCOP 16, [2019] All ER (D) 106 (May)

What are the practical implications of this case?

‘Do we need to make an application to the court or can we just get on and treat? It’s obviously in P’s best interests and everyone agrees—even the Official Solicitor and the family.’ If there was a poll among the Court of Protection Bar of the question we are most frequently asked (and most frequently late on a Friday evening) that one would win the prize. ‘Do we need a declaration?’ In An NHS Trust and others v Y (by his litigation friend, the Official Solicitor) and another [2019] UKSC 46, [2018] All ER (D) 167 (Jul) , the issue was the withdrawal of clinically-assisted nutrition and hydration (CANH)—leading inevitably to P’s death. Re Y marked the apogee of judicial debate on the discrete issue of the withdrawal of CANH and the position is now reasonably clear following judgment and the British Medical Association/Royal College of Physicians guidance. Although the obligation on hospital trusts and clinical commissioning groups to bring an application in respect of other treatments where all parties are in agreement has evidently reduced, the threshold above which an application should be made has not been clearly defined in any case. University Hospitals of Derby and Burton NHS Foundation Trust v J is an example of a case which clearly had to be brought to court, despite the agreement of all concerned that the treatment was in P’s best interests—it is a useful reminder that there are many such cases where an application must still be made.

What was the background? 

‘Anne’, as she is known in the judgment, is a young woman with a diagnosis of autistic spectrum disorder and a severe learning disability. The onset of periods as a teenager had a devastating impact on Anne, both because of the hormonal disturbances caused by a monthly cycle and for the more visceral reason that she was acutely distressed by the experience of bleeding. Over many years, Anne’s treating consultants had tried every alternative to major surgery, including oral contraceptives, an intrauterine device, and medication to suppress hormonal activity. At the time of the application, Anne remained on medication (Decapeptyl), but her treating team were unwilling to continue it until the age of natural menopause, because it is not licensed for long term use. Although long-term side effects are unknown, it was agreed that long-term use would expose Anne to a very high risk of osteoporosis. Administration of Decapeptyl also required Anne’s GP to visit every three months to give her an injection, which she found very upsetting. Removal of Anne’s ovaries would deal with her premenstrual disorder. However, an unavoidable side effect of that surgery was a very high risk of endometrial cancer. This could be addressed by the administration of progesterone, which would in turn lead to the resumption of bleeding. The solution was therefore to remove the uterus, fallopian tubes, cervix and both ovaries. Anne’s treating team therefore concluded that the only remaining option was a full hysterectomy and bilateral salpingo-oophorectomy (removal of both ovaries).

This would remove any chance for Anne to conceive and bear a child. However, Anne lacks capacity to consent to sexual relations and—as the Official Solicitor submitted—the loss for her was ‘theoretical rather than real’. Moreover, Anne herself had indicated that she wanted not to have periods and also did not want to have a child.

Well advised, Anne’s consultant had proactively sought not only a second opinion within the treating University Hospitals of Derby and Burton NHS Foundation Trust (the Trust), but also a third opinion from one of the leading experts in this field, Professor Shaughn O’Brien. Professor O’Brien had no doubt that the proposed operation was in Anne’s best interests, considering that at worst her symptoms would be improved, and that at best her life would be ‘transformed’.

Anne had also begun to suffer from acute abdominal pain, which it had not been possible to investigate. Her treating doctors wanted to proceed to a colonoscopy to check whether this pain was related to her gynaecological symptoms or had some other cause. Anne herself had been reluctant to travel anywhere for several years, finding travel in any vehicle exceptionally difficult to tolerate, and so had not been able to attend hospital. All the clinicians felt that it would be in Anne’s best interests to have both procedures in the course of one hospital visit to minimise the disturbance to her, which would inevitably be caused by being taken to hospital and having to stay there for several days.

Anne lives with her parents, who have cared for her throughout her life. They were fully supportive of both the proposed procedures and of the ancillary plans for Anne’s transfer and aftercare.

What did the court decide?

The Official Solicitor, having read all Anne’s medical records and discussed the matter directly with Professor O’Brien, supported the Trust’s application. Williams J agreed that the balance was ‘overwhelmingly’ in favour of the proposed surgery.

In doing so, he agreed with both the applicant Trust and the Official Solicitor that the Trust had been right to bring the case to court, saying:

‘It is entirely right that cases such as this, where medical decisions and the plan for their implementation impact so profoundly on P’s personal autonomy, bodily integrity and reproductive rights, should be considered by the Court of
Protection at High Court level.’

The judge also paid tribute to Anne’s parents in glowing terms, saying:

‘Too often this court deals with parents who have fallen far short of the parenting that children are entitled to and in
this case, it is profoundly reassuring to know that Anne has parents who soar above that standard.’

The case serves as a useful example of a type of medical treatment case which is so serious in nature that it is right to bring it to court. It also, paradoxically perhaps, reminds practitioners in this area that the loss of reproductive rights is not of universally equal significance to all women. Had Anne herself had capacity to consent to sexual relations and had she expressed any wish to bear a child, this would have been a factor weighing extremely heavily against the proposed procedures. As with all medical treatment cases, this was a very fact specific case—while there is no new principle of law emerging, it enlarges the body of case law in a way which will assist practitioners advise as to when a medical case needs court authorisation.

It does not then provide a straightforward answer to the question so frequently asked of us, but it does provide further guidance in a difficult area.

Michael Mylonas QC has a broad healthcare and private client practice and is often instructed in cases concerning the court’s jurisdiction to safeguard the interests of those who lack capacity. He frequently advises both domestic and international clients on Court of Protection remedies and strategies and has appeared in many of the leading cases concerning medical treatment, assisted dying, euthanasia and fertility treatment. Ranked in Band 1 for Court of Protection work by both legal directories, he is also ranked as a leader in the field for clinical negligence and professional discipline, and regulatory law. Mylonas won the LexisNexis Legal Personality Award in 2019 for his work on ‘groundbreaking legal issues concerning consent to medical treatment’.

 

 

 

This article was first published on Lexis®PSL Private Client on 7 June 2019.