January 22, 2019

NHS obtains order to provide life-saving surgery

SJ, Re [2018] EWCOP 28

Our client, an NHS Hospital Trust, wanted to perform a colostomy on an adult patient who lacked the capacity to consent. S had an extensive and deep wound that wouldn't heal and was suffering sepsis which threatened his life. S's family did not agree with the treating medical team, and disputed that S lacked capacity, or that S needed surgery. All of the attempts at exploring concerns and seeking agreement had been unsuccessful. 

After six months as an in-patient, where the 'watchful waiting' conservative approach had been taken, the Trust had reduced S's BMI, which significantly reduced the risk of death associated with the surgery. However, the wound had not healed, the episodes of sepsis were occurring more frequently and the risk of developing an antibiotic-resistant infection were high. The treating medical team wanted S to undergo surgery, to provide the best chance of recovery; they couldn't agree to stand back and continue to wait. As a result, we applied to the Court of Protection and a date was listed for the matter to be heard approximately two months after the date of application.

Mr Justice Moor heard from Fiona Paterson of 39 Essex Chambers and evidence from the treating clinicians. The Official Solicitor, representing S, agreed at court with the Order we requested. After consideration, Mr Justice Moor agreed with the NHS Trust, that surgery was both urgent and in the best interests of S.

This published judgment may be useful for others because

  • Mr Justice Moor sets out the legal tests to be applied in determining the patient's best interests in a simple and understandable way (paragraphs 33-36);
  • The patient's best interests were decided in the absence of oral evidence from the family and despite their objection to the surgical treatment; and
  • Mr Justice Moor refused to grant an application from the family to adjourn the hearing (in advance), and decided to continue the hearing in their absence (when they did not attend the Royal Courts of Justice) because proper notice had been given.

The case highlights the weight which the Court of Protection will place on hearing multi-disciplinary medical evidence when considering the best interests of a patient, particularly where the patient's family disagree that surgery is appropriate. 

After the surgery was performed, S‘s health improved significantly and they were discharged from hospital.