The recently published X NHS Foundation Trust v RH [2024] EWCOP 150 judgment concerned an application by an NHS Trust (‘the Trust’) for declarations that it was in RH’s best interests to receive urological surgery under general anaesthesia, related care and treatment, and for physical and chemical restraint to be used to facilitate treatment, manage his behaviour, and prevent him from leaving until medically fit for discharge.
The individual in the case, RH was a 40-year-old man who suffered from hebephrenic schizophrenia and is detained under section 3 of the Mental Health Act 1983. He had received frequent input from mental health services for over twenty years, and also suffered from severe bilateral hydronephrosis, chronic urinary retention and declining kidney function and required treatment by way of surgical intervention.
RH was referred for urgent assessment after his GP noted declining kidney function following previous failure to comply with urology investigations due to his mental health. He was placed on the waiting list for a cystoscopy and insertion of an in-dwelling supra-pubic catheter under general anaesthetic (which was not the surgery proposed by the Trust in this application), however this did not go ahead and following a lengthy gap, it was agreed at a multidisciplinary team meeting that RH should receive a different type of catheter.
RH’s mother expressed concern about him pulling out the catheter, which resulted in his surgical consultant expressing the view that the risks associated were too great even if it meant RH’s life expectancy would be reduced without catheterisation.
The application eventually filed at court by the Trust “no longer included the insertion of an in-dwelling catheter. The procedure now proposed include[d] the insertion of a telescopic camera to examine the bladder under GA and X-ray examination of the kidneys with contrast. If RH [was] found to have a bladder neck stricture or a urethral stricture, this [would] be treated by way of a minimally invasive procedure (an incision). There may need to be a catheter inserted but this would be for about 24 hours and sedation would be administered if necessary to prevent RH from forcibly removing it. If there is no clear and treatable cause for the urinary retention, the MDT [would] discuss the findings and reconsider what options for treatment can be offered and what is in RH’s best interests”.
The Trust sought declarations that RH lacked capacity to conduct the court proceedings, and to make decisions about his inpatient admission and treatment of his urological and kidney condition (including post-operative care).
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 – the individual has autonomy to make the decision themselves.
The Judge agreed with the Trust’s submissions based on the totality of the capacity evidence and noted that RH maintained there was nothing wrong with him and that the hospital wanted “to remove his kidneys and kill or harm him” which affected his ability to use and weigh the relevant information.
In considering RH’s best interests in relation to the proposed treatment, the Judge had regard to the following:
- Despite RH’s firm wishes not to undergo any procedure, this wish had to be given limited weight in light of evidence that it was “underpinned by a delusional belief, and the option of no treatment would mean his life expectancy would be significantly reduced"
- In balancing the pros and cons of the proposed treatment, the benefits of a small incision and prevention of further issues was “overwhelmingly in RH’s best interests”
- Some degree of restraint was likely to be required, but that it was in his best interests to do so as a last resort if it meant he underwent the procedure and complied with post-operative recovery requirements
- Without 4:1 staffing on the ward to manage RH’s mental health and facilitate the proposed treatment, he was likely to be non-compliant and the treatment could not be delivered safely
- Previous changes in RH’s medication which had allowed him to begin utilising s17 leave from the hospital had resulted in a better quality of life, which would resume should the proposed treatment take place; and
- RH’s mother agreed with the Trust’s proposed care plan and intended to be involved in supporting RH during his admission and recovery
The declarations and orders sought by the Trust were granted pursuant to sections 15 and 16 of the Mental Capacity Act 2005.
Aside from the substantive issues, the Judge was critical of the Trust’s application and described it as “somewhat haphazard and unsatisfactory” with an urgent application being filed requesting a hearing within 2-5 days.
Notwithstanding directions made by the court, the Trust had failed to file further evidence (including a complete copy of the care plan it was seeking to be authorised by the court) and called a new witness during the hearing who had not previously given evidence, nor was she familiar with the care plan eventually filed.
The application was later described by the Judge as “chaotic”, and she was subsequently informed that the matter was not in fact urgent as no date for the procedure to take place had actually been fixed, notwithstanding that Trust’s assertions at the time of the application being filed that there was “a risk of death if the surgery was not performed urgently”.
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