NHS Trust commended for pre-emptive application to the Court of Protection

The recent case of Re KL (2020) concerned a young lady known as K who required treatment for cervical cancer.

She was found to have the ability to understand some of the concepts surrounding her treatment decisions but was unable to retain them sufficiently well to be able to weigh and evaluate the contemplated treatment. The court therefore found that she lacked capacity to consent to medical treatment.  

The treatment was complex and intrusive and had what was described as a “life altering complexion” to it.  The Trust sought an order that it was in K’s best interests to undergo a combination of radiotherapy and chemotherapy with the aim of trying to cure her or at least to provide her with palliative and symptomatic relief.

There was consensus amongst the treating clinicians, the mother agreed that the treatment was in K’s best interests and K herself was co-operating and keen to go ahead with the treatment.  So why did the matter reach the Court of Protection? The following reasons were given:

1. The treatment was highly intrusive and would need to take place over a considerable period of time
2. The treatment would result in the premature onset of menopause.  K was in her late 30s and did not have children.
3. There was a risk that K may withdraw her co-operation to the treatment when it became distressing as the treatment plan was so onerous.

The Trust brought the case to evaluate what course to pursue if K felt unable to comply with the treatment plan.  There was felt to be an advantage in bringing the application pre-emptively in that it allowed for careful planning in circumstances that may become very difficult. 

Mr Justice Hayden (Vice President on the Court of Protection) commented:

“I agree and commend the approach the Trust has taken.  Though this is a short, extempore judgment, it provides an opportunity to assist Trusts more generally as to the kind of circumstances in which applications should be brought to Court.” 

He referred to the wider guidance that has been issued by the court and emphasised paragraphs 10 and 11 (which deal with the circumstances in which cases should be brought to court, even where there is agreement between all those with an interest in the person’s welfare) and 12 (which deals with the use of restraint).

The court agreed with the clinicians that it would not be in K’s best interests to take coercive measures to compel her to travel to hospital using restraint. Mr Justice Hayden noted that “the clinicians have made the utilitarian and thoughtful calculation that this type of restraint is more likely to exacerbate her withdrawal than encourage her cooperation.”

He concluded the judgment by endorsing the approach of the Trust, which was also supported by the Official Solicitor. He emphasised that having taken the “sensible measure” of coming pre-emptively to Court, a further application could be made if a situation arise which proved to be challenging or delicately balanced.

This case demonstrates the value of bringing a pre-emptive application in difficult cases, even where there may be a broad consensus, rather than applying reactively once a treatment plan has broken down.