In the case of An NHS Trust v K and another, the court had to consider whether it was in the best interests of K to have surgery against her wishes.

Background

K was suffering from cancer of the uterus. She also suffered from a psychotic disorder and a form of chronic schizophrenia. Potentially life saving treatment was proposed by her clinicians that would involve a hysterectomy, the removal of her uterus, fallopian tubes, ovaries and potentially her lymph nodes. Co-morbidities, including obesity, meant there was a risk that K could die during or after the operation.  

K denied that she had cancer and resisted the operation. She lacked capacity to make informed decisions about major medical treatment. An earlier attempt to perform the surgery failed as K became agitated and resistant prior to anaesthesia. The treating clinicians and K’s sons favoured the operation despite the risk to her life. Expert evidence assessed the overall risk of mortality as 40-50 per cent. Another expert assessed the risk of perioperative mortality at around 5 per cent.

The court had to determine:  

  • If it was in K’s bests interests to have the operation
  • If K could be lightly sedated before being told about operation, in the hope that this would make her compliant
  • Whether there should be a ‘power of veto’ regarding surgery  

The court concluded that:

  • The benefits of the operation outweighed the risk of death. The risk was worth taking as she might be cured of cancer and spared a painful, undignified and premature death
  • If no attempt was made to remove the lymph nodes the risk of morbidity was lowered. Therefore the operation should be limited to the hysterectomy, the removal of her uterus, fallopian tubes and ovaries
  • It could be lawful and in K’s best interests to be sedated to enable the operation to take place. It would therefore be lawful for sedation to take place before she was told what was proposed
  • The consultant in intensive care and psychiatrist should have the temporary power of veto  

Doctors were not being ordered to take a particular step and it remained a matter for the professional judgement of the anaesthetist and surgeon about whether the circumstances merited sedation, anaesthesia and surgery. Although their consent was not needed for the operation, the operation would be put on hold if one of K’s sons notified doctors that he no longer supported the operation.

This case highlights the significance of presenting the court with evidence of, for example, the risks and benefits of proposed treatment, as this plays such an important part in the balance sheet exercise of determining what is in a patient’s best interests. It also shows the importance of involving families in discussions about the care and treatment being given to patients.