10. Mrs A complains, on 7 February 2018, in the events leading to the death of her husband from cancer, the Trust inappropriately catheterised her husband without undertaking a required bladder scan to check if catheterisation was necessary. She also complains the catheterisation was not subject to her husband’s consent, nor with appropriate assessment of his capacity. The Trust admit they did not do a bladder scan but say their actions were appropriate. They say bladder scan was not needed as Mr A was suspected as being in urinary retention, displaying terminal agitation and had made several indications he wanted to use the toilet. In terms of consent, the Trust maintain they were acting in Mr A’s best interests and with agreement from Mrs A.
11. Mrs A also raised the restraint used by the Trust in administering the catheter, as she believes this to have been unreasonable and unnecessary. In this case, we have taken the view the complaint about unnecessary restraint has already been considered by the Nursing and Midwifery Council, using the same evidence available to us, with no failings identified. We do not propose to consider the restraint aspect further here. Instead, we have focused only on the catheterising Mr A and whether this was appropriate (particularly without a bladder scan first), and whether Mr A gave consent.
12. We have considered the records for 7 February 2018, to consider the clinical approach taken by staff to the decision to catheterise and whether a bladder scan was required. The Trust maintain the decision was correct as Mr A was in urinary retention, and a scan was not required.
13. Urinary retention is the inability to voluntarily urinate. We have considered guidelines provided by the National Institute for Health and Care Excellence (NICE) for the management of urinary retention in men, in coming to a view here. The guidelines advise catheterization urgently where urinary retention is suspected. The guideline does say a consideration should be given to seek specialist advice in terms of imaging, but only in cases of ongoing management rather than in cases of urgent care. They acknowledge it is a medical emergency. . As such, we appreciate that whilst imaging can be helpful, it is not essential in cases of emergency. Our adviser also explains retention in such cases would be acutely uncomfortable and acknowledges this can lead to distress and agitation for the patient. The records confirm Mr A was very agitated and appeared uncooperative.
14. Our adviser explains catheterisation should not be delayed if the clinical suspicion of urinary retention is high and a bladder scan would cause unnecessary delay as urinary retention can be diagnosed clinically with history and examination.
15. Accordingly, in completing the catheterisation, it was recorded that Mr A drained 450ml of ‘residual urine’ (being the amount that remains in the bladder after urination). On the basis and adult male bladder holds 700mls, our adviser explained this demonstrates Mr A was in urinary retention and would have been in discomfort. Overall, we are persuaded that catheterisation was an appropriate step, and doing so without a bladder scan was not a failing.
Capacity assessment
16. We have therefore gone on to consider Mrs A’s concerns about capacity and consent. She considers Trust proceeded with the catheterisation without appropriate consent being provided for catheterisation, Mrs A is of the view her husband did not wish to be catheterised and it was deeply upsetting for him. Mr A’s distress here is not lost on us here. In this case, the Trust has said, its decision to catheterise Mr A was made in his best interests following a determination he was in urinary retention, a condition that is considered a medical emergency.
17. We understand the Trust maintain urgent care was required and the decision to do this was in his best interests. Best interests is a factor where the clinician has concerns about the patient’s inability to consent to their care and in such cases decisions need to be made in the best interests of the patient. The Mental Capacity Act (MCA) sets out that there should be a presumption of capacity but where the body is of the opinion the person does not have capacity to consent, they would consider a decision in the patient’s best interests.
18. The MCA s2 sets out that a person lacks capacity in relation to a matter if at the material time he is unable to decide for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. We can see from the records provided the position at this time was in terminal agitation, which is not disputed, where he was becoming increasingly agitated and confused regardless of sedation. We understand the Trust took the view that he did not have capacity to make the decision here. We have seen no basis to suggest this was unreasonable. We appreciate Mrs A believes a formal capacity assessment should have been undertaken here but we can see a very was reached by the Trust on capacity which was proportionate to the urgency of the situation.
19. As such, we understand the next steps would be to consider what was in his best interests. The General Medical Council’s Professional standard (Decision making and consent) makes the clinician responsible for an adult patient’s care responsible for deciding what would be of overall benefit to a patient. Accordingly, and within this context and in line with the Mental Capacity Act, we would expect the Trust to have regard to any other person who has legal authority to make decisions on the patient’s behalf – such as through a lasting power of attorney or an advance statement. Our understanding is that this was not understood by the Trust to be in the place here.
20. In these cases, best interest decision would include the requirement to take account of the views of those close to the patient as to what their views are. The nursing record made at the time indicates the Trust believed Mrs A agreed with the approach taken by the Trust. We appreciate Mrs A disputes she agreed to this course of action. Mrs A has advised us her husband had expressed his wishes to her he did not want to be catheterised but says this was a conversation only they (she and Mr A) had had. While we have seen records that Mrs A expressly refused consent at an earlier attempt to catheterise Mr A, we have seen no evidence of expressed refusal for the second attempt. Instead, our understanding is that the Trust believed Mrs A agreed. We appreciate Mrs A has confirmed to us since that she was not in agreement but cannot see a basis to suggest the Trust went ahead despite objections on this occasion. Our adviser has confirmed this is in line with GMC guidelines and has raised no concerns with the clinical approach here
21. While we absolutely do not dispute Mrs A’s version of events, we must consider equally the Trust’s position here. As an independent party we did not witness events and can consider only the evidence available to us in coming to a view. While Mrs A says she did not agree to the catheterisation of her husband, the record made at the time shows the Trust were acting in accordance with a medical emergency, acting in Mr A’s best interest and believed consent was provided by Mrs A. Mrs A has not provided any additional evidence here that would lead us to a view the Trust were not acting in accordance with their belief of consent or that the insertion of a catheter was not in Mr A’s best interest. Indeed, the outcome of the catheter insertion showed Mr A was indeed in urinary retention, which would have been causing him acute discomfort and distress.
22. We very much understand how distressing this experience was for Mr and Mrs A and their family experience and acknowledge this was a very sad and traumatic time. We are also a deeply sorry for Mrs A’s loss and to hear about the discomfort Mr A was experiencing in his last hours. While we sympathise greatly, in reviewing the evidence available to us, we are not persuaded the actions of the Trust here amount to an indication of something going wrong or that they acted other than in accordance with what they should have done.