by Joyce Mortimer
On the 26th May 2010, in DH NHS Foundation Trust v PS, Sir Nicholas Wall P. ruled that it would be lawful to force treatment on a cancer patient with a learning disability, despite her refusal to consent to such treatment. The patient (P.S.) is described by the Court as having, “a significant impairment in intellectual functioning as a consequence of a learning disability.” Nicholas Wall, the President of the Family Division, in the Court of Protection stated that P.S., “lacks the capacity to make decisions about her healthcare and treatment. She also lacks the capacity to conduct or defend proceedings. Dr. NS, a consultant psychiatrist in learning disability presented a report to the court concluding that “P.S. does not have the capacity within the meaning of the Mental Capacity Act 2005 either to make decisions concerning her future medical treatment, or to conduct proceedings.”
P.S. has cancer of the uterus and the doctors treating her stated that without surgical intervention the tumour would spread and lead ultimately to her death. It was report in the Irish Independent, that the patient had “previously agreed to surgery, only to changer her mind and repeatedly refused to turn up for medical appointments, claiming she has a phobia of hospital and needles.” As a result, the doctors applied to the Court for permission to force surgery on P.S. They argued that it was in her best interests as without the surgery she would die. Nicholas Wall ruled in favour of the hospital, basing his decision on the fact that the patient lacked the mental capacity to make the decision regarding her treatment. The Court gave the doctors permission to forcibly sedate the woman in her home and take her to hospital for treatment. Regarding the period of post-operative recovery, the doctors stated that it may be necessary to use, “reasonable force and/or sedation to prevent P.S. leaving hospital.” The Court agreed.
This case has already been subject to intense legal and ethical debate. Liz Sayce, chief executive of Radar, the Disability Network, stated, “The right to refuse treatment is a cornerstone of human rights and medical ethic, but so too is the duty of care. The head states that saving the woman’s life is right; the heart recoils at the thought of deceiving and compelling her to undergo a procedure which she does not want.” She acknowledged that based on the facts it would be difficult to deny that the operation was in the woman’s best interests but in saying that force could only be justified it was established beyond doubt that the patient could not comprehend that without it she would die. She went on to state, “Society, however, must be careful to treat every case individually, and that this case provides no precedent for overriding the consent of people with learning disabilities in the future.” It was reported in the Telegraph that “Some legal experts suggested the case had been brought by the hospital to provide legal protection in case its staff were accused of assaulting the woman or breaching her human rights.”
Yvonne Hossack, a solicitor for the elderly and vulnerable stated, “There’s a question over the ethics of forcing invasive and hurtful surgery on another human being. It seems to me that to force an operation on someone against their will, it’s questionable whether it’s in their best interests. Many people who have cancer do not make the choice that they don’t want invasive surgery.”
