​HN (Out of Hours Application) [2016] EWCOP 43

​Mr Justice Jackson granted permission for an urgent operation to be performed on HN at an out of hours hearing.

Background
HN, aged in her fifties, is diagnosed with depression including psychotic beliefs. She is detained under s.3 Mental Health Act 1983 in a hospital run by the applicant. As a result of a recent suicide attempt she sustained a severe shoulder injury.

HN refused the majority of treatment. Her treating surgeon felt specialist reconstructive surgery would be required to treat HN’s shoulder. He further discovered that HN’s humerus bone had ridden up and was protruding through her skin; the surgeon was concerned about the risk of infection and the possibility of the need for amputation or any life threatening consequences if left untreated. In ordinary circumstances surgery would have been imminently performed. HN was thought to lack capacity to consent to treatment.

It was recognised that the treatment could involve a deprivation of HN’s liberty above that which was authorised by her detention. Authorisation was sought from the high court’s inherent jurisdiction in accordance with A NHS Trust v Dr A [2013] EWCOP 2442.

Decision
Mr Justice Jackson was satisfied that hearing oral evidence was unnecessary given that it was clear the operation should take place as soon as possible. It was decided that it would not be in HN’s best interests to be spoken to directly and evidence of assessing clinicians should be relied upon. The application to operate was granted - however it was stressed that if a further operation is required then a separate application should be made.

Commentary
This case does not fall into the Court of Protection Transparency Pilot which relates to serious medical treatment. Therefore, the governing rules are those under Court of Protection Rules Practice Direction 9E.

Read the full text of the judgment on Bailii