United Lincolnshire Hospitals NHS Foundation Trust v Q [2020] EWCOP 27

Application by a hospital trust for a declaration as to the capacity of Q, a 57 year old woman with epilepsy, regarding conduct of the proceedings and decisions about her dental treatment, and a best interests decision concerning how treatment should proceed. ​

Mrs Justice Gwynneth Knowles, after the reviewing the wealth of evidence concerning capacity, concludes that “it is plainly evident that Q has no ability to understand the most basic of discussions about oral hygiene or dental treatment.”

As to best interests, the judge concludes that the plan for surgery is justified as Q is suffering pain and there is a risk that her disease and tooth decay will get worse and untreated, could increase her dental pain, her salivation, and the refusal of food which would in turn put Q at risk of malnutrition, dehydration, and increased seizures since her epilepsy medication is administered with her food. Reviewing the plan Knowles J also accepts that there will be a need to administer ketamine covertly so as to transfer Q under sedation as the patient is likely to become anxious and distressed if any attempt is made to take her to hospital voluntarily. 

At [26] the issues are summed up as follows:

“Q's recovery is likely to be both painful and upsetting for her because she lacks the understanding to recognise what has happened to her and why it has happened. However, this will be transient discomfort after which she should be able to enjoy her food and derive pleasure from eating without pain. That transient discomfort has also to be balanced against the significant risk of, if untreated, Q experiencing worsening pain where she refuses food, becomes malnourished, and is at risk of developing sepsis. In my view, the course of action proposed by the applicant trust is necessary and the least restrictive possible course in order to carry out the dental treatment that Q urgently needs and has needed for some time on the evidence before me.”

​Read the judgment in full on Bailii