Newcastle Upon Tyne NHS Foundation Trust and MB[2022] EWCOP 43

Applications by NHS trust seeking declarations that MB lacked capacity for making decisions about treatment for suspected T-cell lymphoma and for authorisation of a treatment plan.

MB’s mental health had deteriorated sharply in 2021, with bouts of delirium and psychosis and he was admitted to hospital under s.2 of the MHA where tests revealed possible T-cell cancer affecting his central nervous system as the cause of his decline. At this hearing, there was no definitive diagnosis, only a working one, and the NHS application sought to be able to undertake treatment, the response to which would help with the diagnosis. The medical staff also stated that it would be unsafe to administer the treatment unless MB was sedated, intubated and ventilated.
 
After setting out the relevant principles of capacity, best interests and P’s best interest, Morgan J lists at [70] the factors to be taken into account. She then reviews the conflicting medical evidence before concluding that the treatment plan was in MB’s best interests, despite a great deal of uncertainty as to whether MB would derive any benefit from it, stating at [80]

“I accept that having the treatment may if successful prolong his life and that the starting presumption is protection of his life; that the right to life carries with it strong weight and that even and although the estimate of success is put at 20 % within the context of Article 2 EHCR that is not negligible. Even the most pessimistic of the evidence before me does not suggest the treatment is futile.”

​Read the judgment on the National Archives