The Court of Protection has last week heard a case in which an NHS Trust applied for a declaration that it would be in a woman’s best interests for her to undergo a formal diagnostic examination for cancer, ‘despite her long-standing fear of hospitals’. The case was reported in an article in The Independent.
The woman, known as K, is said to have severe learning disabilities. She is said to have been suffering from cancerous symptoms for the last year, including the finding of a possibly cancerous lump by her GP. She has also lost weight in recent months, a possible cancer symptom.
The woman is however too frightened of hospitals to attend any appointments offered, and refuses to be examined.
Section 1(5) of the Mental Capacity Act 2005 states that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.’
There was no question as to the fact that K lacked the requisite capacity to make decisions regarding her medical treatment, and so it was the job of the Court of Protection to step in and make a decision based on what would be in her best interests; to allow her to be sedated and forcibly treated, or respect her fear in leaving her without examination to run the risk of the possible cancer being left untreated.
Mr Justice Molyan stated that: “Though the risk of cancer is relatively low, it is still, in my assessment, a significant risk and recently K has lost weight, which could be a further indication of cancer. Having regard to the weight of the medical evidence which has been attained in the case, and is all to the same effect, I’m satisfied that it is in Ks best interests for her to undergo the treatment proposed… and make a declaration to that effect.”
The Official Solicitor, who was acting for K in the case, also agreed that it was in her best interests for the treatment to go ahead, without her consent. K will therefore be sedated and will undergo a diagnostic examination.
By Sophie Maloney, human rights law & civil liberties