Judge: Theis J
Citation:  EWCOP 45
The issue in this case (decided in November 2018, but appearing on Bailii in August 2019) was whether it was in SE’s best interests to have her right leg amputated.
SE was diagnosed with schizophrenia and had delusional beliefs which led the clinicians to assess her as lacking capacity to decide whether or not to undergo this procedure. By the time the matter came before the court, it was agreed by all parties that SE lacked capacity to make this decision herself.
The only issue for the court to determine therefore, was whether the amputation was in SE’s best interests. The medical evidence was clear, that without it she would die in a short time frame. Set against this was the fact that SE did not want an amputation (albeit she had at times been ambivalent about it). A factor that the court considered to be particularly important in the balancing exercise was that while SE did not want the amputation, she was clear that she did not want to die. Unsurprisingly therefore the court made the order authorising the amputation.
The judgment in this case is notable for the criticisms the judge made of the applicant’s failures to follow the correct steps to bring the application before the court in a timely manner and on proper notice to SE’s family. So concerned was Theis J about the applicant’s conduct that she directed that a letter be sent to Mr Justice Hayden (Vice President of the Court of Protection) setting out what the court was told were the concrete changes that had been made as a result of the case to ensure that those on the front line are not without effective legal advice in relation to applications that should be made in a timely way in the future. Those steps are set out at the conclusion of the judgment and make essential reading for all Trusts as stress-testing to ensure that they have a sufficient framework in place.