New case alert: Re SW [2017] EWCOP 7

​Application for permission to remove transplantable material for the purpose of transplantation. The application was refused.

The various individuals in this case are as follows:

• SAN, who needs a bone marrow transplant;
• SW, the Patient, who is SAN's adoptive sister and the proposed donor;
• SW's son (and therefore SAN's nephew), who is the applicant in these proceedings and is SW's attorney under a Health and Welfare LPA;
• Dr Waghorn and Dr Jooste, who have been struck off the medical register and who have agreed to carry out the proposed medical procedure.

SAN is said to be suffering from multiple myeloma, a form of haematological cancer. It is said that unless he can have a bone marrow transplant from a donor – an allogeneic transplant – he will die. The proposed transplant (assuming that SW lacks capacity, the premise of the application) cannot lawfully proceed without an application being made to the Human Tissue Authority (HTA). No such application can be made by Dr Waghorn or Dr Jooste because neither is a registered medical practitioner. The purpose of these proceedings therefore (SW's son relying on the LPA as the basis for him making the  application) was to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

The Court of Protection dismissed the application. The Court had no jurisdiction, no power, to exempt anyone from the statutory scheme under the Human Tissue Act 2004 and The Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006. This scarcely coherent application was totally without merit - it was misconceived and vexatious. The son, Dr Waghorn and Dr Jooste were ordered to pay costs in the sum of £7,671 to the HTA. A reporting restriction order was varied allowing the naming of the 2 doctors.

​Read the full text of the judgment on Bailii