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Case law update - an NHS Trust application to authorise surgery to P's shoulder in his best interests

View profile for Sophie Holmes
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Shocking inspection results from a local private hospital

The recently published Manchester University NHS FT v Y [2023] EWCOP 51 judgment concerned an application to determine whether Y had capacity to consent to surgery to his shoulder and, if he lacked capacity, whether the proposed surgery was in his best interests.

The facts

The case concerned a 42-year-old man with a diagnosis of paranoid schizophrenia, and who was anonymised as ‘Mr Y’ throughout the proceedings.

Mr Y lived alone and had been treated with Clozapine for several years but had also been subject to several inpatient admissions.  

Mr Y requested to be medicated with Olanzapine in July 2023 and his treating clinicians agreed to switch his medication. His engagement with services and his health subsequently began to deteriorate. He presented as irritable and neglectful of his personal care and denied requiring medication or suffering any mental health issues.

He was admitted to A&E and later intensive care after being found unresponsive in the community, having suffered a seizure and sustaining multiple injuries. He was assessed and detained pursuant to section three of the Mental Health Act 1983 and refused to consent to proposed surgery to treat his fractured and dislocated shoulder.

On 10 November 2023, an application was made by Manchester University Hospital NHS Foundation Trust (“the Trust”) for an order determining that it was in Mr Y’s best interests to undergo ‘an open reduction and internal fixation of the L humeral head fracture, together with all ancillary treatment considered of clinical benefit by the Trust including anaesthesia and pain relief’. The Trust also sought authorisation to apply proportionate chemical and / or physical restraint to safeguard Mr Y, if necessary.

Interestingly, Mr Y’s brother is a consultant orthopaedic surgeon and considered that Mr Y lacked the requisite capacity to make decisions about his proposed medical treatment. Both Mr Y’s brother and his father supported the proposed treatment taking place.

The issues

At a hearing on 14 November, the Judge made an order preventing the identity of Mr Y, his family members and the treating clinicians being reported on the basis that they should not be ‘discomforted by being publicly named’ and there was no (or very limited) public interest in reporting the same.

Dr F, a consultant liaison psychiatrist, assessed Mr Y to lack capacity to decide whether to consent to (or refuse) treatment for his injured shoulder on 9 November. Dr F noted that Mr Y ‘did not believe information given to him by the medical and surgical team about his treatment and care plan’ as a result of psychosis. He was ‘able to retain information pertinent to the decision… but [was] not able to weigh up the risks and benefits of surgical treatment he require[d] due to his delusional ideas of not requiring treatment and his poor engagement with his treating team on discussing the operation’. Further, Mr Y was ‘paranoid about staff, irritable and hostile’ and did ‘not appear to believe that he [would] lose function and movement in his arm should he not have the operation’ but could not explain his reasons why.

When a person lacks mental capacity and a decision needs to be made, it must be made for them in their best interests. If a person has been assessed as having capacity to make the decision, a best interests decision cannot be made for them as the individual has autonomy to make the decision themselves.

The court also heard from Mr D, a consultant orthopaedic surgeon, who specialised in shoulder and elbow surgery. Mr D set out the risks of the surgery in a statement but explained that the surgery ‘[couldn’t] await a resolution of Mr Y’s mental ill-health because it becomes technically un-feasible three weeks after the injury’ and that without treatment, ‘the injury [could] lead to a significant disability and on-going pain’.

Dr W, a consultant anaesthetist, also gave evidence to the court. He explained that the options for safely getting Mr Y to theatre ranged from him attending theatre voluntarily and complying with all theatre checks (which was the preferred option), to Mr Y being administered intramuscular ketamine using physical restraint if necessary and being taken to theatre in a sedated state for induction of general anaesthesia.

Mr Y was joined as a party to the proceedings and represented by his litigation friend, the Official Solicitor, who submitted that surgery was in Mr Y’s best interests but recognised the need to give effect to his wishes and feelings and, in particular, the effect that failure to treat could have on Mr Y’s independence in the long-term.

The decision

The Judge accepted that Mr Y was unable to decide about his proposed treatment within the meaning of section 3 of the Mental Capacity Act 2005 (‘the 2005 Act’), and that he therefore lacked capacity, as a result of his delusional thinking caused by his paranoid schizophrenia. 

A best interests analysis was therefore undertaken in accordance with section 4 of the 2005 Act, which was largely agreed between the parties. The Judge considered the relevant factors to be as follows:

  1. That there were medical and anaesthesia risks to the surgery, but these were relatively low;
  2. Without the surgery, Mr Y would be left in pain which would be significant enough to impact on his daily activities;
  3. Without the surgery, and aside from the pain impacting on function, the functioning of the left arm would be impaired;
  4. His family considered that, if Mr Y were not mentally unwell, he would have had the surgery to remain active with a fully functioning left arm;
  5. He accounted for Mr Y’s opposition to the surgery and said ‘I do not apply an “off-switch” to his present wishes’;
  6. ‘Independence’ is a value which Mr Y prized and significant weight should be given to this value pursuant to section 4 (6) (b), as if Mr Y had capacity then his independence of spirit and lifestyle would likely influence his decision;
  7. His father’s and his brother’s wish for him to have the surgery; and
  8. The treating psychiatric team and orthopaedic clinicians considered it in Mr Y’s best interests to have the surgery.

In particular, the Judge was anxious to ensure that weight was placed upon the value of Mr Y’s independence but agreed that it was in his best interests to receive the proposed surgical treatment.

The Judge was also exercised with an invitation by the Trust to authorise a care plan permitting the ‘security team’ to use reasonable and proportionate force to administer the sedation but expressed concern that this task was not allocated to trained staff from Greater Manchester Mental Health NHS FT, which was also joined as a party.

Dr F later explained that Mr Y was ‘more likely to comply with the medication without the need for restraint if security [were] present rather than mental health staff’ and the Judge authorised restraint on the basis that it was carried out in accordance with the 2005 Act and by suitably trained staff.

If you need advice about a best interests decision or dispute concerning a vulnerable adult, please do not hesitate to contact us. Legal aid funding is available subject to eligibility. Call us on 01616 966 229.