All clinicians are well aware that patients must not be tricked or cheated into receiving treatment that they would otherwise refuse to undergo. Clinical regulators make this crystal clear. Recent revelations concerning patients who were tricked into having entirely unnecessary intimate examinations, or surgery, underline why deception is detestable, harmful to public confidence in medicine. In this context, it could be construed as a criminal act. Can deception ever be justified?
The case of Anne, a young woman with autism and a severe learning disability, was recently heard in court. She lacked capacity to make decisions about her medical treatment. Anne had a marked aversion to leaving her home, or travelling by road. The court found that she would not do so willingly.
Since her menarche, she had suffered very severe distress at the sight of her own menstrual bleeding. Her distress was expressed as aggressive and challenging behaviour, exacerbated by hormonal fluctuation. Despite an exhaustive range of treatments (most recently three monthly Decapeptyl injections) during her teenage and young adult life, this problem culminated in severe episodes of mental illness. As the limitations of these treatments and the risks of their side effects became ever more apparent, the question of hysterectomy came increasingly to the fore. Hysterectomy, removing the possibility of menstruation, would permanently abolish her primary source of distress, and simultaneous oophorectomy would ameliorate her challenging cyclical behaviour. Taken together, all were agreed that this surgery would reduce the chances of recurrence of her mental illness.
The hospital trust looking after Anne thus sought a declaration that removal of her uterus, fallopian tubes and ovaries would be in her best interests. Anticipating that Anne would refuse to travel to hospital, the trust proposed giving her sedative, whilst pretending that her usual injection of Decapeptyl was being administered. The patient’s parents supported this proposal, noting that they believed it was overdue, frustrated that it should have been undertaken five years previously. The official solicitor, acting for Anne, noted that she was unable to express a clear view about the surgery, but that she had indicated that she wanted to avoid menstruation or child bearing.
The judge found that deceiving her into accepting sedation would facilitate transport, anaesthesia and surgery, minimising the impact that this sequence of events would have upon her. In declaring the proposed plan to be in her best interests, he found that ‘…the means is completely justified by the end.'
Such an approach mirrors previous judgements, where incapacitated patients have been deceived into accepting treatments that they would have otherwise refused. Examples include a woman who did not believe she had uterine cancer in whom it was declared lawful to mislead into having extirpative surgery, and a man who needed to have excisional biopsy of a breast carcinoma, where it was feared that he would ‘go berserk’ if he was told the truth about what was about to happen to him.
Deception (given in the dictionary as ‘seizing from, cheating or trickery’) is plainly closely allied to covert treatment (defined in terms such as hidden, covered, and secret). It is well recognised that covert treatment must conform to the principles of the Mental Capacity Act 2005. Perhaps deception is different from covert treatment, since it is foreseeable that the patient eventually will come to realise the trickery, albeit rooted in benevolent intent, to which they have been subjected. An unanticipated scar or the exchange of a familiar subcutaneous lump for an unwelcome fresh incision may give the game away. Covert treatment, on the other hand - where it has been found lawful, in a person’s interests, to hide antipsychotic sedation in a strongly flavoured drink - is less likely later to become obvious to the patient.
Since deception may thus be inherently more objectionable to a patient (should they ever come to realise that they were duped) than covert treatment, it is vital that clinicians should seek independent assurance, almost certainly from the Court of Protection, before adopting such measures.
Department of clinical law, June 2019