DeclarationsSerious medical treatment cases:declarationsMedical treatment casesDeclarations:serious medical treatment casesSerious medical treatment cases:declarationsMedical treatment casesDeclarations:serious medical treatment casesSerious medical treatment cases:declarationsMedical treatment casesDeclarations:serious medical treatment cases
22.19Serious medical treatment cases are unusual in that the applicant (usually the treating NHS Trust) does not generally seek decisions from the court,
1ie under MCA 2005 s16. but rather declarations as to whether a proposed course of action is lawful.
2Under MCA 2005 s15. PD 9E gives examples of the wording that should be adopted in respect of particular categories of cases.
3PD 9E paras 17 and 18. It is questionable whether this is, in fact, correct, or whether the real relief that should be sought is not a decision (under MCA 2005 s16(2)(a)) consenting (or refusing consent) on behalf of P,
4See Re MN [2015] EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521. coupled (where the treating Trust is particularly concerned to have legal ‘cover’) with a declaration under MCA 2005, s15(1)(c). It may well be that PD 9E is amended in due course to make this clear.
22.20In any event, it is important to be precise. In Aintree, for instance, the NHS trust in question made an application for a declaration that it would be lawful to withhold three types of life-sustaining treatment from Mr James ‘in the event of a clinical deterioration’. As Lady Hale noted, this actually meant ‘should his condition deteriorate that they [ie the treatments] become necessary’, and that it would have been helpful to say so.
22.21The courts have also shown themselves to be careful to maintain a distinct line between matters in respect of which they can properly make declarations or decisions under the MCA 2005 and those matters which fall within the scope of the ethical and clinical obligations owed by the treating doctors. In
A NHS Trust v (1) K (2) Another Foundation Trust,
5[2012] EWHC 2292 (COP), [2012] COPLR 694. for instance, Holman J authorised the sedation of a woman who needed a hysterectomy before she was to be informed that it was proposed to carry out the proposed surgery so as to reduce the risk that she would be non-compliant.
6Relying on DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam), [2010] COPLR Con Vol 346, (2010) 13 CCLR 606. Holman J did not authorise restraint to be used on the patient because of the risk to her given her other medical difficulties. Holman J noted, however, that ‘an ethical issue may arise as to the degree of sedation and whether the surgeon can ethically proceed to operate unless he has given to the patient an adequate account of what he proposes to do while she retains sufficient awareness to hear it and take it in. But that is an ethical matter for him’.
7Para 44.