NHS Trust v K & Ors [2012] EWCOP 2922 (15 October 2012)

NHS Trust v K & Ors [2012] EWCOP 2922 (15 October 2012)

The court held that, on the evidence, the risk of perioperative mortality for K was closer to 5% than to 40-50%, and that the potential benefits of surgery—namely, cure or significant palliation and avoidance of a painful, undignified death—outweighed the risks. It was therefore in K's best interests to undergo hysterectomy and bilateral salpingo-oophorectomy, with lawful pre-operative sedation and subject to medical and psychiatric oversight and temporary veto by key clinicians or her sons if circumstances changed.

Citation
[2012] EWCOP 2922
Parties
Applicant: A NHS Trust; First Respondent: K; Second Respondent: Another Foundation Trust
Jurisdiction
England and Wales
Judgment Date
15 October 2012
Procedural Posture
Court of Protection Application / Judgment on Best Interests Declaration
Outcome
Declarations granted: surgery, anaesthesia, and pre-operative sedation lawful notwithstanding K's refusal, subject to conditions and temporary veto by key clinicians and sons.
Legal Topics
Best Interests Decision, Consent to Medical Treatment, Mental Capacity Act 2005, Surgical Intervention Without Consent
Mental Capacity Medical Law Best Interests Decision Consent to Medical Treatment Mental Capacity Act 2005 Surgical Intervention Without Consent

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Parties

A NHS Trust

Applicant

K

First Respondent

Another Foundation Trust

Second Respondent

Procedural Posture

Court of Protection Application / Judgment on Best Interests Declaration

Legal Issues

  1. 1 Whether it is in the best interests of an incapacitated adult to undergo major surgery despite her refusal and high operative risk
  2. 2 Lawfulness of pre-operative sedation without prior disclosure to the patient
  3. 3 Scope of lawful medical intervention under the Mental Capacity Act 2005

Ratio Decidendi

The court held that, on the evidence, the risk of perioperative mortality for K was closer to 5% than to 40-50%, and that the potential benefits of surgery—namely, cure or significant palliation and avoidance of a painful, undignified death—outweighed the risks. It was therefore in K's best interests to undergo hysterectomy and bilateral salpingo-oophorectomy, with lawful pre-operative sedation and subject to medical and psychiatric oversight and temporary veto by key clinicians or her sons if circumstances changed.

Court Disposition

Declarations granted: surgery, anaesthesia, and pre-operative sedation lawful notwithstanding K's refusal, subject to conditions and temporary veto by key clinicians and sons.

Orders

  • It is lawful for the named consultant surgeon and team to perform hysterectomy and bilateral salpingo-oophorectomy under general anaesthetic on K, notwithstanding her refusal.
  • It is lawful for the named consultant anaesthetist and team to administer general anaesthetic and necessary pre-operative sedation, provided sedation is administered and monitored by a qualified anaesthetist.