A new decision underscores the vital role of judicial oversight in complex medical treatment cases where patients lack capacity.
This case concerned RS (anonymised), an 18-year-old with profound learning disabilities, severe cognitive and physical impairments and advanced scoliosis. The spinal curvature significantly compromised RS’s respiratory function and overall quality of life. His treating clinicians recommended corrective spinal surgery.
If surgery was to proceed, RS required an extended period, estimated at two to three weeks of elective mechanical ventilation under deep sedation in intensive care. This post-operative care plan is highly unusual for scoliosis surgery in young people and lacked precedent or robust data to guide decision-making. However, it was deemed necessary because RS was unlikely to be able to tolerate post-operative pain and immobility, and there was concern that he might interfere with essential medical equipment and wound care.
There were no viable conservative alternatives. The choice was binary: proceed with surgery and intensive care or provide no treatment for RS’s scoliosis. The central issue before the Court of Protection was whether this intervention was in RS’s best interests.
RS lacked capacity to consent to or refuse treatment under the Mental Capacity Act 2005 (MCA). While RS’s mother (GH), the surgical team, independent experts, and the Official Solicitor (acting as RS’s litigation friend) broadly agreed that surgery was not contrary to RS’s best interests, all acknowledged the decision was finely balanced. The matter was therefore brought before Mr Justice Poole in the Court of Protection for determination.
Legal issues
The Court was asked to determine whether the proposed surgery and intensive post-operative care were in RS’s best interests under section 4 of the MCA. Mr Justice Poole referred to guidance in Applications Relating to Medical Treatment [2020] EWCOP 2, which emphasises that finely balanced decisions involving serious medical treatment warrant judicial oversight.
The assessment required careful consideration of both the potential benefits and risks of the proposed surgery.
- Benefits of surgical intervention included an improved quality of life, increased life expectancy and prevention of further respiratory decline.
- Risks of the surgery included complications from prolonged ventilation and sedation, infection and a potential fatality rate of approximately 10%.
The Court’s decision
After reviewing all evidence, including GH’s insights into RS’s personality and tolerance for medical interventions, expert opinions, and clinical assessments, the Court concluded that the benefits outweighed the risks. It was therefore in RS’s best interests to proceed with the scoliosis surgery and the associated elective ventilation.
Importantly, Mr Justice Poole emphasised that the responsibility for this decision lay with the Court, not with RS’s family or clinicians. By “holding the risk,” the Court relieved those directly involved in RS’s care from the burden of making a finely balanced decision. This allowed healthcare professionals to focus on delivering care, without fear of retrospective criticism.
Comment
Mills & Reeve represented the Second Respondent, The Royal Orthopaedic Hospital NHS Foundation Trust in this case.
This judgment is notable not only for addressing the best interests principle in the context of major surgery but also for approving a prolonged period of elective mechanical ventilation, a treatment rarely considered by the Court of Protection.
The decision also highlights the critical role of judicial oversight in ethically challenging medical scenarios. By formally assuming responsibility for the decision, the Court alleviated the emotional and professional burden on clinicians, allowing them to focus on delivering care without the weight of having to choose between high-risk options.
This case is likely to serve as a reference point for future applications involving high-risk interventions and complex post-operative care in patients lacking capacity.
You can read the judgment here.
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