Judge: Cohen J
Citation:  EWCOP 29
Summary and comment
In this case, Cohen J had to decide whether to give authority to administer an entirely novel treatment to a middle-aged man suffering from sporadic CJD. All agreed, including the Official Solicitor’s behalf, that the treatment was in his best interests. It was vitally important that treatment begin immediately, as the man’s condition was progressing rapidly.
In approving the treatment, Cohen J identified that the best interests test, here, could be broken down into the following factors (at paragraph 17):
[first] the nature of the treatment that is proposed, what is involved and what its prospects of success are. Secondly, what are the views of the patient, what does he want and what do his nearest and dearest want? Thirdly, how do I feed into the thought process the fact that this is a novel and experimental treatment.
As to nature, the actual treatment was not hugely invasive, it might require direct placement into the brain, together with continual – and potentially uncomfortable – monitoring. Cohen J identified a series of safeguards that were in place regarding the novelty of the treatment, including (at paragraph 22) that:
Next, the Trust in the middle of this year, anticipating that this sort of case would arise within the reasonably foreseeable future, has been in communication with the Official Solicitor and has had at least one meeting with the Official Solicitor involving the appropriate medical staff. That is a step which I applaud. It means the Official Solicitor has had time to consider all the relevant facts and, even though he was doing so in a vacuum without a patient on hand, it permitted the thought processes about the relevant matters to develop without the pressure of a case that was coming imminently before the courts.
When it came to wishes, it was clear that KG himself wanted it. Perhaps slightly more surprisingly, Cohen J also took into account the wishes of and, impact upon, his family, following Simms v NHS Trust  EWHC 2734 (Fam), concerning an (unrelated) 16 year and an 18 year old, in which Dame Elizabeth Butler-Sloss had noted that:
The impact of refusal by this court of granting the declarations on each set of parents and, in one case, 5 siblings, and in the other case, one sibling, would in my view be enormous and palpable. In a finely balanced case I should give the views of the parents and the effect upon them of refusal great weight in the wider considerations of the best interests test which the court has to apply to each patient.
Cohen J had no hesitation in approving the treatment as being in his best interests.
Two further points of importance arose:
First [the doctor] must act at all times in accordance with a responsible and competent body of relevant professional opinion, generally described as the ‘Bolam test’ … [Secondly] … a duty to act in the best interests of a mentally incapacitated patient.
However, Cohen J declined to do so, noting (at paragraph 33) that
Simms was a case that pre-dated the Mental Capacity Act, and I do not think it is helpful to layer an additional level of test on top of those which are set out in the Mental Capacity Act.
The test is therefore simply that contained in the MCA, although we would suggest that a doctor who was acting entirely outside the scope of a body of relevant professional opinion would in the ordinary run of events have a difficult time explaining how they could be said reasonably to be acting in the best interests of the patient to whom they were administering the treatment.
 Tor being involved in the case, she has not contributed to this report.