Court of Protection rules in favor of mastectomy for woman lacking capacity, orders Trust to pay majority of costs

Citation: [2023] EWCOP 50
Judgment on


The Court of Protection case of [2023] EWCOP 50 examines the intersections of mental health, patient autonomy, and the obligation to act in an incapacitated person’s best interests regarding medical treatment. The case elucidates key legal principles pertaining to the Mental Capacity Act 2005 (MCA 2005), highlighting the court’s duties in determining capacity and best interest decisions, and assesses the conduct of the applying Trust in relation to the costs incurred during proceedings.

Key Facts

GH, a 52-year-old woman, diagnosed with breast cancer, is at the center of this case. Due to her schizoaffective disorder, GH does not believe she has cancer and refuses all recommended treatment. The Trust responsible for her care applied for a declaration that GH lacks capacity to make treatment decisions and sought authorization to perform a mastectomy and axillary node clearance without her consent.

The application, filed nearly seven months post-diagnosis, was considered urgent, complicating the court’s schedule and proceedings and impacting the Official Solicitor’s involvement. Mr Justice Poole presides over the case, reviewing the evidence provided by medical professionals and considering the testimony from GH’s family.

The legal analysis in this case primarily involves the application of the MCA 2005, which sets out the statutory framework for acting on behalf of individuals who lack the capacity to make decisions for themselves. The court must assess:

  • The individual’s capacity as per sections 1-3 of the MCA 2005, accounting for the presumption of capacity until proven otherwise.
  • The best interests of the individual under section 4 of the MCA 2005, considering all relevant circumstances, not solely medical, but also their psychological and social welfare.
  • The principles stated in the Mental Capacity Act 2005 Code of Practice and Convention rights under Articles 2, 3, and 8 of the European Convention on Human Rights, as described in the case of Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67.

Furthermore, the case addresses the conduct of the applying Trust in regards to the timing of the application, employing principles derived from the Court of Protection Rules (COPR) 2017 and the Civil Procedure Rules (CPR). The court examines whether to depart from the general rule on costs, that there’s no order as to the costs of proceedings concerning personal welfare, by considering the factors laid out in COPR r19.5 relating to the conduct of parties and the role of public bodies involved in proceedings.


Mr Justice Poole concluded that GH lacks the capacity to make her own medical decisions and that it is in her best interests to undergo the proposed surgery, aligning with the agreement reached among the medical experts, the Official Solicitor, and GH’s family members.

On the matter of costs, the court determined that the conduct of the Applicant Trust, in delaying the court application, justified a departure from the general rule. As a result, Mr Justice Poole ordered that the Trust pays 80% of the Official Solicitor’s costs, to be assessed on a standard basis if not agreed. This decision diverges from the usual practice where public bodies pay 50% of such costs, reflecting the seriousness of the Trust’s delay and its consequences.


In summary, [2023] EWCOP 50 aptly illustrates the application of the MCA 2005 to assess capacity and best interest decisions in the context of serious medical treatment. It underscores the weight afforded to the person’s wishes while balancing their physical and mental well-being. Further importance is laid upon the proper conduct of public bodies, highlighting that late initiation of proceedings can have significant judicial and financial repercussions. This guidance serves to advocate for the efficient use of court systems, the effective representation of incapacitated individuals, and the mindful expenditure of public resources.

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