- March 27, 2019
- Posted by: Josiah Hincks Solicitors
- Category: News
Operating on an unwilling patient is an assault and a deprivation of liberty and that is why doctors are careful to obtain unambiguous consent – but what happens where a patient lacks the mental capacity to give such consent? A High Court ruling provided a textbook example of how the law reacts to such situations.
The case concerned a man in his 30s who suffered from paranoid schizophrenia and who was prey to delusions. Detained in a mental hospital, he had suffered a dislocated fracture of his right shoulder but had consistently refused to undergo surgery under general anaesthetic. In those circumstances, NHS lawyers sought the Court’s authorisation for the operation to proceed.
In granting the order sought, the Court noted the unanimous views of clinicians that the man lacked capacity to make the critical decision for himself. The shoulder injury rendered his right and dominant arm unusable and meant that he was incapable of performing physical activities he enjoyed. The operation would cure or greatly alleviate his condition, and the Court found that it would be in his best interests.
Treating doctors were also authorised to sedate the man covertly prior to surgery, that step being preferable to forcibly injecting him under restraint. The Court urged that the man be subjected to the minimum possible deprivation of liberty and that all reasonable steps be taken to minimise his distress and maintain his dignity.