NHS Trust v K & Ors

NHS Trust v K & Ors

The court found that, on the balance of probabilities and considering all the evidence, the risk of mortality from the proposed surgery was closer to 5% than to 40-50%. The potential benefit of cure and avoidance of a painful, undignified death outweighed the risks. The operation, limited to hysterectomy and removal of ovaries and fallopian tubes (excluding lymphnodectomy), was in the patient's best interests. Pre-operative sedation prior to disclosure was lawful and justified. The treating clinicians and the patient's sons were given a temporary power of veto to halt the process if circumstances changed.

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
Outcome
Declarations granted; operation permitted subject to conditions and powers of veto.
Legal Topics
Best Interests Decision, Consent to Medical Treatment, Use of Sedation, Power of Veto in Medical Treatment, Mental Capacity Act 2005
Mental Capacity Law Medical Law Best Interests Decision Consent to Medical Treatment Use of Sedation Power of Veto in Medical Treatment Mental Capacity Act 2005

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Parties

A NHS Trust

Applicant

K

First Respondent

Another Foundation Trust

Second Respondent

Procedural Posture

Court of Protection Application / Judgment

Legal Issues

  1. 1 Whether it is in the best interests of an incapacitated adult to undergo life-saving but high-risk surgery against her expressed wishes
  2. 2 Whether pre-operative sedation without prior disclosure is lawful and in her best interests
  3. 3 Whether the treating clinicians and family should have a power of veto over the operation proceeding

Ratio Decidendi

The court found that, on the balance of probabilities and considering all the evidence, the risk of mortality from the proposed surgery was closer to 5% than to 40-50%. The potential benefit of cure and avoidance of a painful, undignified death outweighed the risks. The operation, limited to hysterectomy and removal of ovaries and fallopian tubes (excluding lymphnodectomy), was in the patient's best interests. Pre-operative sedation prior to disclosure was lawful and justified. The treating clinicians and the patient's sons were given a temporary power of veto to halt the process if circumstances changed.

Court Disposition

Declarations granted; operation permitted subject to conditions and powers of veto.

Orders

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