Consent and capacity to consent – when can the patient’s wishes be overridden?

Posted: 12/07/2022

Last year, in the case of East Lancashire Hospitals NHS Trust v GH [2021] EWCOP 18, the court was asked to consider a scenario in which a patient (GH) provided informed and valid consent to treatment, but later sought to withhold that consent, in circumstances where the clinicians caring for her felt that she lacked capacity to make that decision.  

Although the decision was one made by the Court of Protection, and not a clinical negligence case per se, the case raised some interesting issues about consent in clinical negligence claims.

GH had a history of mental health issues including anxiety, depression and, most significantly in the context of this case, agoraphobia. She became pregnant and her fear of leaving her home had a clear impact on her antenatal care. GH chose not to attend routine appointments and scans, and made it clear that she wanted a home birth. In planning for her home birth, which was supported by her clinicians, there was a discussion about the need for hospital admission if complications arose during labour and admission was necessary for GH’s safety. She agreed that the home birth would proceed on that basis.

GH went into labour at home and, while initially things progressed routinely, it became apparent she had developed an obstructed labour. She was advised that she needed urgent admission to hospital for obstetric management and, potentially, an emergency caesarean section. 

GH refused to agree this, despite her earlier agreement to be admitted to hospital if there were complications necessitating hospital management. Those caring for her were worried for her physical health given the obstructed labour. However, they were also concerned that, at that point in time, she in fact lacked capacity to make the decision as to whether to agree to, or refuse, a hospital admission. This was given her overall condition, which included a significant escalation of her anxiety and agoraphobia. An urgent capacity assessment was arranged during the labour, the conclusion of which was that she did lack capacity to make such a decision.

One notable point about this case is how quickly things then progressed. Once a decision was made that it was in the best interests of GH to be admitted to hospital and that she lacked capacity to decide if she would agree to that, the Official Solicitor was contacted and appointed. 

This was followed by an urgent out of hours application to the Court of Protection. The application reflected the situation that GH was felt to lack capacity to make the decision about admission, that an order allowing proportionate and reasonable measures to effect the admission and treatment required was in her best interests, and that there was no violation of GH’s human rights in taking such steps.

Macdonald J heard the emergency action. He made clear that he appreciated the significance of the requested course of action, which would effectively be to sedate GH and transfer her to hospital against the wishes she was expressing at the time. His judgment reflected that:

“It is a very grave step indeed to declare lawful medical treatment that a patient has stated she does not wish to undergo. It is a graver step still to compel, possibly by means of the use of sedation and reasonable force if further gentle persuasion fails, the removal of a person from their home to ensure their attendance at hospital for such medical treatment. Parliament has conferred upon the court jurisdiction to make a declaration of such gravity only where it is satisfied that the patient lacks the capacity to decide whether to undergo the treatment in question and where it is satisfied that such treatment is in that patient’s best interests.”

However, he considered that the capacity assessment made clear that her agoraphobia, anxiety and depression were at levels that were preventing her from weighing and using information in order to make a decision. As such, she lacked capacity to decide whether to agree or not. He concluded that in those circumstances it was in her best interests for her to be taken to hospital and managed in hospital by an obstetric team, and made the appropriate order.  

It should be noted that one of the factors considered was that, at a time when GH did have capacity to make decisions about her care, she had agreed the course of action now required should be taken if needed. It might have been a more difficult decision for the court had there been clear evidence that GH did not consent to or want this treatment at a time when she did have capacity to make decisions. The other point of note was that the focus was very much on GH and what was in her best interests, rather than that of her baby.

Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches Cooper comments: “As clinical negligence lawyers, we deal with the issue of consent to treatment on a regular basis. We are usually looking at issues about whether a patient was given sufficient information in order to make an informed decision – including information about alternatives. However, this case highlights the important issue of timing. Consent given at a time when a patient had capacity may not be binding when they lose capacity and, equally, there will be situations where consent is needed and a patient lacks capacity to give that. 

“It is important to remember that capacity and the assessment of capacity in accordance with the Mental Capacity Act 2005 is both time and issue specific. Where we are asked to consider concerns about treatment provided - or not provided - and whether the patient provided consent, the issue of capacity at the time needs to be considered. 

“From a clinician’s perspective, this case is a good example of the right approach being taken. The clinicians involved felt that admission was in the patient’s best interests but took the appropriate steps of assessing her capacity before seeking to override her wishes, and took steps to obtain proper and urgent approval to their proposed course of action.”

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