Case Summary: King's College Hospital NHS Foundation Trust v FG [2019] EWCOP 7

• Covert sedation
• Best interest
• Treatment-resistant paranoid schizophrenia
• Treatment for shoulder fracture/dislocation

• Covert sedation may require case-by-case consideration by a judge
• Followed Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67

There was agreement between professionals and family members that it was in FG’s best interests to undergo the operation. The Official Solicitor (“OS”) did not oppose this view but could not agree to any order due to FG’s firm and unwavering resistance. It therefore came before the court as a serious dispute on best interests.

Due to the level of agreement, and the urgency of this application, the judgement is short and straight forward. There are two potential difficulties that arose for Mr Justice Francis in respect of covert sedation and the risk of FG not cooperating with the post-operative care. These are not uncommon issues in cases with similar facts, and the Judge found that it was in FG’s best interests to be covertly sedated and that the risks of not cooperating post-operatively outweighed the potential benefits of having the operation as against doing nothing. The Judge emphasised that rather than giving guidance on use of covert sedation each case would require individual consideration by a Judge.

Best interests’ decisions for patients who lack mental capacity are complex. If the care envisaged includes administration of covert medication, the organisations involved should seek legal advice on how to proceed, including whether an application to Court is necessary.

FG is 37 and has treatment-resistant paranoid schizophrenia. The application followed confirmation that FG was suffering from a dislocated and fractured right shoulder that, in the opinion of the medical team, required manipulation and/or surgery under general anaesthetic. This is understood to be a relatively straight forward procedure.

FG had thereafter consistently declined to have surgery under general anaesthetic, for a number of reasons seemingly linked to his delusions/paranoia. He was found to lack the requisite mental capacity to make decisions about treatment for his shoulder. In considering his best interests the clinicians noted that he is right-handed and that engaging in physical activities such as chopping wood and fishing were envisaged as part of his longer-term care plan and this required the ability to use his arms. One goal of FG’s care was transfer to a therapeutic rural community project with such activities which were considered to be highly beneficial to his wellbeing and the prospects of improving his mental health.

At the time of the application FG was in pain, and admitted to his right arm being unusable. The medical team’s evidence was that with the surgery and recovery, FG would be able to do activities of daily living as well as activities that involve manual work and heavy lifting. Without surgery, use of his right arm would be permanently impeded.

An application was made in the Court of Protection for:

a) a declaration that FG lacks capacity to make decisions regarding the medical treatment for his physical health conditions;
b) that it is lawful and in FG's best interests for him to undergo an operation to repair his right shoulder fracture/dislocation; and
c) that it is in his best interests to receive any sedation and anaesthesia his clinicians think necessary to allow the operation to be done.

The medical evidence included a balancing exercise outlining the benefits and drawbacks of each course of action, including no treatment being undertaken.

Mr Justice Francis found FG to lack capacity and that b and c were in his best interest to the extent that they were “necessary and on the basis that any measure used to facilitate or provide the arrangements shall be the minimum necessary and that all reasonable and proportionate steps are taken to minimise distress to FG and to maintain his dignity.” [28]

When considering covert sedation the Judge took into account the risks of chemical sedation under restraint. In particular that restraint would involve restraining him by his shoulders which likely would cause further pain and injury to the shoulder which was already dislocated and fractured. Mr Justice Francis stated that these were exceptional circumstances in which the administration of covert medication is a better option for P than forced chemical injection under restraint. Mr Justice Francis could not offer any specific guidance on when covert medication would be justified, saying that it was such an invasion of liberty that it should rarely be authorised and a Judge would have to decide it on a case by case basis.

When considering the possibility that FG decides not to cooperate post-operatively and the associated risk that the wound would be opened, Mr Justice Francis found that the risk of FG not cooperating post-operatively should be borne in his best interests. There was some evidence that FG had acquiesced to treatment that he had not wanted it once it was happening, which supported this decision. In addition, he considered that doing nothing was unpalatable in that it would leave FG in pain with an unusable arm. Therefore subject to the carefully managed care plan, Mr Justice Francis ruled it was in FG’s best interests to take the risk of FG not complying with the post-operate regime.