Thirumalesh Chellamal Hemachandran & Anor v Sudiksha Thirumalesh (dec’d) & Anor
[2024] EWCA Civ 896
A NHS Trust v ST & Ors
25 August 2023
[2023] EWCOP 40
Court of Protection
A very sick 19-year-old wants to try experimental treatment instead of accepting end-of-life care. Doctors disagree on if she understands her situation well enough to make that decision. The judge decided she doesn't, and a higher court will decide what's best for her.
Key Facts
- •ST is a 19-year-old with a rare, progressively degenerative mitochondrial disorder.
- •She is in the final stage of her life, requiring mechanical ventilation, feeding tube, and dialysis.
- •ST believes she can recover through experimental nucleoside therapy abroad and refuses palliative care.
- •The Trust seeks declarations on ST's capacity to litigate and make medical decisions.
- •Conflicting expert opinions exist regarding ST's capacity; some believe she has capacity, while others believe she does not.
- •ST's family strongly supports her wish to pursue experimental treatment and are raising funds.
Legal Principles
Principles of Mental Capacity Act 2005 (MCA)
Mental Capacity Act 2005
Diagnostic test for capacity: impairment of, or disturbance in, the functioning of, the mind or brain.
MCA s.2(1)
Functional test for capacity: understanding, retaining, using, and communicating relevant information.
MCA s.3(1)
Presumption of capacity unless lack of capacity is established.
MCA s.1(2)
Belief in the reliability and truth of information is subsumed within the functional test.
Local Authority X v MM [2007] EWHC 2003 (Fam)
Capacity assessment is decision-specific.
A Local Authority v JB [2021] UKSC 52
Outcomes
ST lacks capacity to make decisions regarding her future medical treatment.
ST's inability to believe the medical prognosis prevents her from understanding, using, and weighing relevant information, thus failing the functional test. Her refusal to accept the prognosis is likely due to an impairment of, or disturbance in, the functioning of her mind or brain, stemming from the trauma of her illness and prolonged intensive care.
ST lacks capacity to litigate without a litigation friend.
Given the lack of subject matter capacity, litigation capacity is also lacking. Concerns exist regarding the instruction of ST's independent solicitor.