Withdrawal of treatment in a young man
The case of R, a 40 year old man, was recently heard in the Court of Protection. Three years prior to the hearing, an MRI revealed his incurable but asymptomatic brain tumour. At the time of radiological diagnosis, the tumour was considered to be low grade, non aggressive; the clinicians had opted for an expectant approach. The patient acknowledged his diagnosis and agreed to the management. It had been difficult to persuade him to comply with straightforward clinical appointments, and he had a tendency to behave in a hostile, threatening fashion.
Two years later, a further MRI revealed unexpected rapid growth, despite a persistent lack of symptoms. The court was told that appropriately treated, his prognosis could vary from 12 to >120 months, depending on the histology, but the tumour remained incurable. By this stage, R was inconsistent as to whether he had a tumour, on some occasions altogether denying its existence. R’s doctors were unanimous that he now lacks capacity to decide whether to consent for active treatment; which would consist of surgery, radiotherapy and chemotherapy.
It was for this reason that the Court of Protection was involved, since R’s doctors sought a declaration that it was in his best interests not to undergo treatment for the brain tumour, but rather for him to be provided with only symptomatic care. When the legitimacy of serious medical treatment in incapacitated patients is uncertain, the Court of Protection must usually be consulted.
At first glance, it seems highly unusual to propose that life prolonging treatment would not be in the interests of an active 40 year old man, irrespective of his lack of capacity. It is commonplace to perform amputations and other severe treatment on incapacitated patients whose age is much greater and prognosis much poorer than R’s.
But R’s co-morbidity was chronic paranoid schizophrenia, his delusional ideas including the belief that he was being interfered with by others.
The Court was told of the side effects of surgical resection, and that the postoperative use of dexamethasone would be hazardous, due to the risk of precipitating psychosis. Plainly, restraint and detention would be required peri-operatively (although foreseeable for any incapacitated patient). R’s anticipated non-compliance with the full course of radiotherapy was emphasised, linked to the risk that premature discontinuation of this treatment could paradoxically promote tumour growth. The onerous nature of chemotherapy was cited, and R’s psychiatrist predicted that all three modalities of treatment would distress his patient. In particular, to force upon R compulsory treatment for which he did not understand the need would not only affront him, but would lead him to resist, worsening his mental illness.
The official solicitor (a lawyer instructed by the Court to represent R) submitted that the decision was difficult due to R’s young age, and the possibility that treatment would afford him a considerably longer life than if the declaration not to treat was made. He felt that if surgery alone had been required to prolong life substantially, then the risks and associated distress would be outweighed by the benefit. But taking into account the physical and mental injury and distress that the adjuvants would entail, the balance shifted, and these harms were not justified by the ultimate outcome.
In putting himself in R’s position, the judge considered it was ‘highly likely that he would not choose to have surgery’. With regard to all the circumstances, in particular R’s probable non-cooperation and the severe effects of treatment on his mental health, the judge concluded that in the widest sense, it was in R’s best interests not to receive the definitive treatment, and instead to have only symptomatic palliative care.
Reactions to this judgement will vary. On the one hand, this declaration can be seen as humane; sparing the patient abject distress that will only be recompensed by a quantity and quality of life that remains uncertain. On the other, the decision places this incapacitated patient, unfortunate enough also to have a mental illness, in a very different category from his peers, who are incapacitated but not covered by the Mental Health Act. Judicial decision-making is an unenviable task.
Department of clinical law, June 2017