Judge: Sir James Munby P
Citation:  EWCOP 7
Re SW is a quite extraordinary case that came before Sir James Munby P in March of this year. The Applicant brought an application for a declaration that an allogeneic bone marrow transplantation from a living donor, SW, into her adoptive brother, SAN, would be both lawful and in SW’s best interests. SAN was reported to be suffering from haematological cancer such that without the transplant, he would inevitably die.
The facts and relationships between the various actors in the case are complex albeit that the issues are relatively straightforward. The Applicant was the putative donor SW’s son, acting under a Lasting Power of Attorney purportedly executed by SW in June 2015 and witnessed by a Dr Jooste. Dr Jooste was in turn the physician who proposed to carry out the transplant, alongside his friend and colleague, a Dr David Anthony Waghorn. Dr Waghorn was also the Applicant’s father and SW’s husband.
The Applicant son sought a declaration from the Court of Protection that it was lawful for his father and his father’s colleague to carry out the transplant of bone marrow from SW to SAN, “notwithstanding the [Human Tissue Authority’s] refusal to consent” to the treatment. The Applicant notified the court that both Dr Waghorn and Dr Jooste had relinquished their membership with the GMC in order to continue their specialized medical practice in bone marrow transplantation.
This case followed an earlier failed application to the COP under an LPA purportedly being exercised on SAN’s behalf and a failed judicial review by a company directed by Drs Waghorn and Jooste on the same issue. The instant application was similarly unsuccessful and was struck out.
Firstly, Sir James Munby P held that there was no evidence before the court that SAN did in fact wish any such treatment to be carried out and no attempt had been made to join him as a party.
Secondly, and more fundamentally, it was entirely unclear a) whether SW did indeed lack capacity to give consent to the transplant as was suggested by her son or b) if she did lack capacity, that any attempt had been made to ascertain her wishes and feelings on the matter. The sole evidence relied upon as to her capacity was a 15 year old letter from a clinical neuropsychologist noting that she had had a series of strokes following a road traffic accident and that there had been a drop in her IQ score; in addition to this there was a letter from a further neuropsychologist’s report from August 2016 confirming that SW did not present as someone with dementia and that he could not form a conclusive opinion as to her capacity to consent to the operation. In fact the neuropsychologist himself voiced concerns that “assessment in mental capacity needs to be as specific as possible”.
Sir James Munby P accordingly confirmed that the information put before him was well below the required threshold to make a declaration as to SW’s lack of capacity, even on an interim basis, and that as a result the entire matter fell outside the jurisdiction of the Court of Protection.
Quite apart from the jurisdictional issue, referring to the pre MCA case of In Re Y (Mental Patient: Bone Marrow Donation)  Fam 110 Sir James observed there was no authority upon which the Court could make a declaration that the proposed treatment was in SW’s best interests in the absence of, among other things, expert medical evidence regarding the nature of the procedure, details of the clinicians carrying out the procedure, or confirmation that the donee did in fact wish the procedure to take place as proposed. He noted that there was no evidence as to SW or SAN’s wishes and feelings, save for the assertion by the son that SAN would “obviously…. agree because no-one wants to die”.
Noting that the son had further failed to confirm that both his father and Dr Jooste had been struck off and that his skeleton argument appeared to be about the value to the wider public of SW undergoing the procedure, Sir James questioned “is there some wider agenda at work here, and, if so, whose agenda is it?” He observed that:
a prudent judge probably never says ‘never’, but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E… [serious medical treatment] where the treatment is to be given by a doctor who has been struck off (paragraph 25).
Given these facts, it is perhaps not surprising that Sir James determined to depart from the usual order in welfare cases and made a costs order against the son for bringing the application. Significantly, despite the fact that they were not applicants in the proceedings, given that each had sought to be joined as a party and had “expressed themselves as consenting to the application”, Sir James Munby P further determined that Dr Waghoorn and Dr Jooste should share the burden of the costs with the applicant son.
This is a striking case not least because of the facts. It is in this context that Sir James Munby P took the decision to name Dr Waghorn and Dr Jooste, the anonymisation of SAN, SW and the son notwithstanding, on the basis that there is a “very strong public interest in exposing the antics which these two struck-off doctors have got up to”.
The decision itself is not surprising. It is a clear reiteration of the fundamental principle that the Court of Protection has no jurisdiction to determine the lives of those who are not found to lack capacity – and that a health and welfare LPA cannot be relied upon to make decisions on another’s behalf in circumstances where they are capable of doing so themselves.
It is also entirely unsurprising that the requirement under the Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006 for the matter to have been referred to the Human Tissue Authority by a registered medical practitioner and properly deemed to be lawful could not be circumvented by an application to the Court of Protection, the Court having no jurisdiction or power to exempt anyone from such a statutory scheme.