PG (Serious Medical Treatment), Re
[2024] EWCOP 49 (T3)
GH (Mastectomy: Best Interests: Costs), Re
6 November 2023
[2023] EWCOP 50
Court of Protection
A woman with mental health problems refused cancer treatment. The court said the treatment was needed to save her life, even though she didn't want it. The hospital was told to pay a large part of the legal fees for delaying the case for too long.
Key Facts
- •GH, a 52-year-old woman with schizoaffective disorder, refused breast cancer treatment.
- •Sandwell and West Birmingham Hospitals NHS Trust applied to the Court of Protection for declarations regarding GH's capacity and best interests.
- •The application was made nearly seven months after diagnosis and shortly before scheduled surgery.
- •GH lacked capacity to make decisions about her treatment due to her psychosis and delusional beliefs.
- •The court considered GH's Article 2, 3, and 8 ECHR rights.
- •The court found it was in GH's best interests to undergo a mastectomy.
- •The Official Solicitor applied for a costs order against the Trust due to the delay in bringing the proceedings.
- •The court ordered the Trust to pay 80% of the Official Solicitor's costs.
Legal Principles
An act done for a person lacking capacity must be in their best interests.
Mental Capacity Act 2005 (MCA 2005)
Principles for assessing best interests of an incapacitated individual.
MCA 2005
Court's power to make decisions on behalf of an incapacitated person regarding personal welfare, including medical treatment.
MCA 2005
Decision-makers should consider the MCA 2005 Code of Practice.
MCA 2005
Best interests considerations should encompass medical, social, and psychological welfare, considering the patient's likely attitude to treatment.
Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67
Strong presumption in favour of life-prolonging treatment, unless exceptional circumstances exist.
R(Burke) v GMC (OS Intervening) [2005] QB 424
In personal welfare cases, the general rule is no costs order, unless circumstances justify departure.
Court of Protection Rules 2017 (COPR)
Court's wide discretion in determining costs orders, including considerations of party conduct and reasonableness.
CPR Part 44, COPR r19.6
Outcomes
GH lacks capacity to conduct litigation and make treatment decisions.
Delusional beliefs due to schizoaffective disorder prevent her from understanding and weighing relevant information about her cancer and treatment.
It is in GH's best interests to undergo a mastectomy.
Weighing the risks and benefits of surgery against the risks of untreated cancer, considering her mental health and wishes, and the evidence from medical professionals and family.
The Applicant Trust to pay 80% of the Official Solicitor's costs.
Unreasonable delay in bringing the application, undermining the Official Solicitor's role and potentially harming GH. This decision reflects the seriousness of the delay and its consequences while acknowledging the pressures on NHS Trusts.