Judge Authorises Urgent Surgery for person lacking capacity

Posted on: November 2nd, 2016

A Judge ruled, during an out of hours Telephone Court Hearing, that permission was granted for an urgent operation to go ahead the following day on P, a person lacking capacity to make decisions in relation to their treatment.

P is a woman in her fifties who suffers from depression and has some psychotic beliefs. P is detained under section 3 of the Mental Health Act 1983 at a Hospital. P appeared to have attempted suicide and in doing so caused a severe injury to her shoulder. P refused most treatment for her injuries, which appeared to be healing apart from the injury to her shoulder. The surgeon considered that P’s shoulder may require specialist reconstruction surgery in due course and that it was too early to attempt the surgery at this stage.

The surgeon discovered that P’s humerus bone had lifted up and was protruding through the skin, most likely caused by muscle spasm. The Trust treating P then bought an urgent application to the Court as the surgeon was concerned about the risk of infection. The surgeon considered that sepsis might already be present in the tissue which could spread to the bone. The surgeon was unable to specify the degree of urgency as he was unable to explore the wound. However, the surgeon suspected that infection was present. It was difficult to foresee what would happen if the operation was delayed as usually there would be no delay in exploration and treatment of such a wound. If the infection did spread to the bone the consequences could be very serious for P:

  • Infection in the bone could prevent reconstructive surgery
  • It could lead to amputation of P’s whole arm and part of her shoulder, leaving her with a major physical disability and disfigurement
  • It could lead to a life-threatening infection spreading within a matter of days. 

The Trust responsible for P’s treatment wished to carry out an urgent operation on P’s shoulder the following morning immediately after the Telephone Court Hearing. The operation would involve cleaning out the wound, trimming back the bone and sealing the wound site up. It was suspected that P would resist to the treatment and she would need to be restrained in order to be anaesthetised.

P was thought to lack capacity to consent to treatment. The surgeon and the anaesthetist carried out a capacity assessment the night before the Telephone Court Hearing. The surgeon’s view was that P could understand and retain the information relevant to the decision to consent to the operation, but could not use and weigh up the information in order to make a decision. P did not engage in the discussion and she refused treatment but could not give reasons for her refusal. The clinicians explained what they proposed to do and why and the risks of having/not having the operation.

The Trust recognised that the planned operation could potentially involve a deprivation of P’s liberty over and above that authorised by her detention under section 3 of the Mental Health Act.

The Judge was satisfied that the Trust had provided evidence which covered all of the material issues. The Judge also recognised the need for the operation to take place as a matter of urgency and that nothing further could be gained from a further oral Hearing (Court Hearing in person). The Judge stated that should a further operation be necessary, a separate Court application would be required. The Judge was satisfied that it was in P’s best interests to have the relatively minor operation in order to prevent serious harm and that the operation should be performed as soon as possible.

After the Telephone Court Hearing, the Trust confirmed that the operation took place the following morning and went as expected with no issues. P went into theatre passively with no restraint or sedation. P is currently being administered intravenous antibiotics as it was apparent that the fracture had become infected.

Coffin Mew’s Court of Protection team can assist with applications to the Court of Protection if a person lacks capacity to make decisions in relation to health and welfare or financial matters.