If an NHS treating team believes that it probably won’t be possible to investigate P for potential cancer, do they need to apply to the Court of Protection to obtain an order not to investigate? At what point should the application to Court be made: when they have a consensus view or clear dispute, or when the concern first arises?
Mr Justice Cobb has provided his views in the recent case of PG (Serious Medical Treatment). We distil the key findings here.
Analysis
P had severe schizophrenia and opposed all medical interventions. She was detained under the Mental Health Act in a psychiatric hospital. In 2023 P was referred to an acute hospital gynaecology team under the 'two week wait' (cancer referral) process, because of a growth which had been found along with irregular vaginal bleeding. P attended to see a gynaecologist, but refused an examination. P did not attend further appointments.
The hospital were concerned that she may have a gynaecological cancer, and hoped that further investigations might rule that out. They held several best interests meetings to discuss possible investigation plans with the specialist mental health team. The clinicians found it difficult to determine a treatment plan which was in P's best interests: any medical investigation against P's refusal would likely cause a deterioration in P's mental state, requiring readmission to hospital under detention and jeopardising the imminent plans for discharge into the community from the psychiatric unit.
It became apparent that the serious medical treatment options for P were so finely balanced, that the case required an application to Court. The NHS Trusts made a joint application to Court.
Outcome
Having considered all of the evidence, Mr Justice Cobb determined that it was lawful and in P's best interests not to investigate P's potential cancer. He noted that "P's psychiatric and gynaecological conditions are plainly complex and severe; the intersection between the two is fraught with difficulty". He concluded that forced investigations would cause a significant deterioration in P's mental health, and that P probably would not comply with any subsequent cancer treatment in any event. Instead a palliative care plan was agreed.
Guidance on the timing of future applications
In his judgment, Cobb J stated that:
- Where cancer is suspected and P may lack capacity "Hospital Trusts should not hesitate one moment before bringing the matter before the court", urgently. It was noted in particular that if cancer is diagnosed at an early stage, it is more likely to be treated successfully (even though in this case, the outcome would not have been different).
- "Perfect may be the enemy of good". When it was clear that the clinicians could not agree on a plan to facilitate the recommended investigations in a timely manner, in his judgment, the application should have been made. He noted that it was not necessary to have a "fully worked up care plan in relation to the investigations" and that the Court can then direct the necessary witness and expert evidence. In practical terms, rather than a proposed care plan for investigations, the treating team would need to set out; this is how we would usually investigate and how quickly, and these are the barriers to doing that in this case.
DACB recommendations
Deciding when to make an application to Court is often a fine line to tread: the NHS Trusts will want to make an application for a decision as soon as possible, but equally, will want to ensure they have explored as much of the relevant complex medical detail as possible first (including to have clarified what their application is asking the Court to do). An application without evidential substance can also lead to public criticism, and can result in lengthier (and costly) court proceedings.
This judgment sets out the Court's view that, where a case may require urgent medical treatment, Cobb J prioritises urgency over detail. There is still an element of balance to be struck and unfortunately, each case is different and requires its own balancing exercise.
In essence, where the necessary treatment may be urgent, the application to Court needs to be made urgently. We recommend that relevant treating teams are made aware of this principle, so that they escalate appropriate cases quickly to their legal team.
How DACB can help
Our team of specialist health law solicitors are always available to discuss tricky issues or potential cases that you may have. We welcome early discussion and can help you to spot the red flags in possible Court of Protection cases.
