The case of A Hospital NHS Trust v CD provides further clarification on the complex issue of deprivation of liberty.
The issue in this matter was whether it was in the best interests of a 43-year-old woman, CD, who suffers from paranoid schizophrenia, to have a total abdominal hysterectomy to remove two large ovarian growths at the recommendation of her medical experts.
It was agreed CD lacked capacity to consent to/refuse the recommended treatment.
CD has a history of violence and aggression and had exhibited hostile behaviour during her mental health admissions.
CD was visited by the judge during the course of these proceedings and was observed to be engaging and polite. She indicated she would like to have the surgery but not the associated treatment. There appeared to be some delusional reasons for wanting the surgery. However, Mr Justice Mostyn concluded the operation was in her best interests.
The judge’s visit is important, as it is becoming increasingly common practice among Court of Protection judges to visit the individual subject to the court application. Interestingly, the judge stated that CD, although heavily medicated, was entirely different to the patient described in the written evidence before him. While the evidence was outlined as being correct and very helpful, the judge’s observation serves as a useful reminder for the need for accurate and comprehensive statements and medical records.
He outlined that it was very important to ensure that CD’s wishes and feelings, which had elements of delusion, were not used to undermine a capacity assessment, but rather were considered in weighing up what would be in her best interests.
Mr Justin Mostyn also considered whether a deprivation of liberty authorisation was required to see CD’s treatment through. She would be kept in for treatment and would not be free to leave if she sought to while treatment was being offered. Readers will be aware that Mr Justice Mostyn has presided in some high profile cases relating to DOLS following the Supreme Court’s ruling in Cheshire West. His previous cases, including the case of Rochdale have been the subject of much debate and criticism. He repeated his concern that the Supreme Court’s test is confusing. However, he ruled that the surgery was coercive even with her compliance and would go ahead even against her wishes so he felt it necessary to authorise her deprivation of liberty.
How we can help
While it appears this topic is still the subject of much debate, it is clear that where the acid test from the Supreme Court’s ruling in Cheshire West is met and is required in relation to serious medical treatment, then advice should be sought in relation to the need to apply to court. We have been involved in some of the leading DOLS cases post Cheshire West. Please do not hesitate to contact us to book training or to discuss particular matters.