An NHS Trust v The Patient
2014
COURT OF PROTECTION
United Kingdom
CORAM
- MR JUSTICE HOLMAN
Areas of Law
- Health Law
- Human Rights Law
2014
COURT OF PROTECTION
United Kingdom
CORAM
AI Generated Summary
The Court of Protection had to decide whether a 65-year-old man lacking capacity should undergo necessary surgery for cancer, despite his resistance. Based on medical evidence and support from his sister, the court found that the patient lacked capacity and ruled the surgery was in his best interests. The judgment emphasized using minimum force to facilitate the procedure and informing the patient in sensitive language beforehand. Reporting restrictions were placed to prevent distress to the patient.
J U D G M E N T
MR JUSTICE HOLMAN:
This is an application to the Court of Protection for a best interests decision in relation to a man who clearly has a pressing need for surgery for cancer. He lacks capacity to give or withhold any informed consent, but is personally resistant to having an operation.
The essential factual background is as follows. The patient is now aged 65. He has a lifelong lack of capacity. He has learning difficulties and also is on the autistic spectrum. For about 40 years he has lived mainly in a care home together with a very small number of other residents. I say mainly in the care home, for he does also go regularly to stay for periods of about two weeks with his sister to whom I will later refer.
During this summer his carers observed an obvious lump in the vicinity of his right breast. As a result, he has now been examined several times by doctors, including the consultant oncoplastic breast surgeon who proposes to perform the surgery, and he has also had an ultrasound scan of his breast and the lump. The results of those examinations and that scan indicate that it is highly likely that the lump is indeed cancerous. However, because of the patient’s resistance to surgical or similar intervention, no biopsy has yet been performed that would, or might, put the diagnosis beyond doubt. I am quite satisfied, however, on the basis of the written evidence in this case that it is highly likely that the patient does have cancer in the area of his breast.
There have been a number of discussions with the patient, both by the consultant surgeon and by other professional people, including his own mental health carer, in order to try to assist him to understand his medical condition and the gravity of it, and to assist him to make his own informed decision to undergo surgery. However, his constantly repeated position is that he has not got cancer; whatever it is that is wrong with him will be cured or controlled by medication; and an operation is not necessary.
So the relevant NHS Trust for the area in which the patient lives have commenced the present application to the Court of Protection. The Official Solicitor consented to act, and does act, as his litigation friend in these proceedings. The patient has never been married and does not have any children. His only close relative appears to be his sister. The relationship between them appears to be a very close one. His sister is devoted to him and, as I have mentioned, he regularly