Legal update – court of protection best interests decisions & the weight to be attached to delusional beliefs

NHS Foundation Trust  v QZ [2017] EWCOP 11

In this case the Court of Protection revisits the issue of the weight to be attached (if any) to the delusional beliefs of a person lacking capacity when best interests decisions are being made on their behalf.

The Facts

QZ was a patient in her 60’s with a long-standing diagnosis of paranoid schizophrenia. Her most pervasive delusions were that she was a young Roman Catholic virgin who had been sexually abused in the past. She felt herself at risk of being poisoned or raped by her carers or doctors. Her views were vigorously held and had endured over most of her adult life. QZ resided in a care home which provided long-term care for adults with mental health needs. She was reported to be happy and settled there albeit she would react badly if she perceived that her autonomy was under threat.

QZ lacked capacity to make decisions about her medical treatment.

Approximately 12 months prior to the hearing QZ had developed post-menopausal bleeding and the treating NHS Trust sought an order permitting a hysteroscopy and endometrial biopsy under general anaesthetic with the objective of identifying the cause of her bleeding. Further authorisation was sought for keyhole hysterectomy in the event of an abnormal pathology being identified. Her oncologist felt there was a real risk that this bleeding might indicate a gynaecological cancer. An ultrasound scan had revealed thickening of the endometrium – cancer of the endometrium was suspected. The risk of cancer was evaluated at between 30 and 50%. Although the prognosis following treatment for endometrial cancer was dependent on the stage the cancer had reached, on the whole the prognosis following treatment was encouraging  with an average five year survival rate of between 79% and 82%.

QZ refused to undergo any further investigation. It was therefore acknowledged that a degree of coercion and force would be required to undertake the proposed investigations and treatment if the order was granted.

The Official Solicitor, instructed to represent QZ, opposed the Trust’s application on the basis that, given her delusional beliefs,  the risks posed to QZ’s mental health from undergoing the proposed investigation outweighed any potential benefits of investigating ‘the chance’ that she may have cancer. Evidence was heard from an independent psychiatrist instructed by the Official Solicitor who predicted a serious and potentially prolonged deterioration in QZ’s mental health as a consequence of the proposed medical intervention. QZ’s treating psychiatrist was, however, of the opinion that QZ had sufficient resilience to overcome any mental distress caused by the treatment and, in the longer term, re-gain trust in those caring for her.

Consequently there was a conflict between the potential benefits for QZ’s physical health of undergoing investigation and treatment and the significant deterioration in her mental health which would inevitably result.

The Judgment

Mr Justice Hayden re-stated the established approach to be taken when making best interests which is to look at the question from the assumed point of view of the person to whom the decision relates. In this type of case, best interests involves not only medical best interests but also the patient’s wider social and emotional interests.

The judge emphasised that when identifying where QZ’s best interests lie, in the context of this medical treatment decision, it was not necessary to investigate whether there was any element of truth underlying her delusional beliefs. However he emphasised that:

‘The wishes and feelings of those who suffer from delusional beliefs are not automatically, in my judgement, to be afforded the same weight as the beliefs articulated by an individual who has not had the fortune to possess the powers of objective reasoning and analysis.’

He added  that:

‘The kernel of the issue is that delusional beliefs should never be discounted merely because they are irrational. They are real to the individual concerned. The weight they are to be afforded will differ from case to case and, as always, will fall to be considered within the broader context of the evidence as a whole.’

Although Mr Justice Hayden accepted that QZ would suffer a period of profound mental distress following the proposed medical investigation/treatment he concluded, based on the evidence of her treating psychiatrist, that she had the resilience to recover and had a prospect of many years of life ahead of her. He therefore authorised the proposed investigation and treatment to proceed.

Comment

This case provides a valuable reminder that a person’s delusional beliefs should not be dismissed out of hand in the context of best interests decision-making. Such beliefs must be weighed up in the balance holistically alongside all other relevant factors including medical, psychological and social factors. The weight to be attached to such beliefs will vary from case to case. Although in this case, on the evidence, the judge concluded that the mental distress (derived from QZ’s delusional beliefs) that would inevitably result from the proposed investigation and treatment was not sufficient to outweigh the benefits to her physical health from the same.

Of note, the judge in this case was extremely critical of the 12 month delay in the bringing an application before the court:

‘It is profoundly troubling to me that I am being asked to consider the issues here over 12 months after the serious health concerns became known. I record that I have been provided with no satisfactory explanation for the delay. I re-emphasise that I am concerned with the vulnerable and incapacitous woman.’

This serves as a warning to those involved in the care and treatment of those lacking capacity not to delay in making an application to the Court of Protection when there is a clear indication for court intervention, particularly where delay in making a best interests decision is likely to have a detrimental impact on the patient’s treatment and prognosis.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.