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In August 2018 a judge decided that a colostomy should be performed on an incapacitated man, and in doing so overruled the patient’s wishes to avoid the procedure. How can this be justified?

The patient, Mr SJ, was 43 years old, diabetic, incontinent of urine and stool and detained under the Mental Health Act due to psychosis. He had been admitted to an acute hospital in November 2017 due to sepsis, secondary to a sacral pressure ulcer exposing the bone. During the intervening period, remaining in hospital, SJ’s ulcer had partly responded to treatment but at the time of the hearing remained 10 x 8 x 3cm deep, exposing the sacrum.

He was unable to sense or control defecation due to the neurological complications of his diabetes. As a result, SJ soiled his ulcer every time he opened his bowels and the court was told that this contamination caused infection, and that the ulcer could not heal in the presence of infection. As a consequence, the medical evidence asserted that his life expectancy was of 6 months without diversion of the faecal stream, mainly due to the risk of recurrent septicaemia. Alternative methods of reducing soiling were discussed in court, such as rectosigmoid irrigation or thickening stool consistency; it transpired that both methods had been extensively used but that the infection of the ulcer persisted despite them.

The Official Solicitor represented SJ in court. It was accepted that SJ lacked capacity because he was unable to understand or believe information given to him, and unable to weigh the advantages against the disadvantages of colostomy formation. The court was told that SJ did not want the operation because he believed it would cause him further pain. But the doctors told the court that pain was much more likely without the colostomy and both the hospital and the Official Solicitor agreed that the evidence pointed to a ‘potential catastrophe’ if the colostomy was not performed.

The court scrutinised the meaning of ‘best interests’, noting that its focus should be directed at how SJ’s interests were best served, rather than those of the objective ‘reasonable patient’ used in other legal circumstances (such as when identifying disclosure for the purposes of consent). In doing so, SJ’s wishes and feelings needed to be considered since they were important factors, although not determinative. The strength and consistency of his views and the extent to which these wishes and feelings are or are not rational had to be taken into account, in the context of the clinical circumstances. And crucially, ‘….the extent to which SJ’s wishes and feelings if given effect to can be properly accommodated within the court’s overall assessment of what is in his best interests’. 

When viewed through this prism, the court found that SJ’s fears of postoperative pain were unfounded, and that he would both tolerate the colostomy and be much happier as a result of it. Furthermore, following colostomy the ulcer would heal, opening the possibility of stoma reversal in the future. The court found colostomy to be lawful.

This is an instance where a patient’s wishes were at odds with what manifestly accorded with his welfare. It was straightforward to identify SJ’s mistaken belief that postoperative pain would be worse than the suffering entailed by inaction. Having negated this fear, there were no further beliefs or wishes that contradicted the finding that colostomy was in SJ’s best interests.

A much more difficult decision would have loomed if the patient’s coherent wishes and accurate beliefs betrayed, in reality, his capacity. To watch a patient with capacity die for the want of a colostomy in these circumstances would have been harrowing - profoundly miserable for all involved.

Robert Wheeler

Department of clinical law, December 2018