Mental Capacity Case

Newcastle Upon Tyne NHS Foundation Trust v MB

Morgan J


This case concerns the medical treatment of MB, a 30-year-old man suffering from neuropsychiatric symptoms. In May 2022 he was given a working diagnosis, following a brain biopsy, of T-cell cancer of the skin, brain and bone marrow. The disease was thought to be affecting his central nervous system, and to be the likely cause of his psychiatric symptoms.

By the time of the application to court, MB was in hospital, deprived of his liberty pursuant to a Standard Authorisation. He was assessed as lacking capacity to consent to the treatment that had been identified as suitable to treat T-cell cancer. 

The Trust sought orders for authority to provide a high dose of methotrexate (MTX) under general anaesthetic over several days for up to two cycles, and for deprivation of MB’s liberty arising from the use of the chemical restraint and sedation. The need for the anaesthetic and so deprivation of liberty arose from the fact that MB was not compliant with his care and treatment and so all agreed that it was not safe to provide the MTX unless MB was sedated intubated and ventilated. 

The particular difficulties in this case were (i) that while there was a working diagnosis of T-cell cancer, there was no ‘certain diagnosis’, and so as the Judge pointed out ‘it may be that MB is suffering from something else and the diagnosis - and therefore, importantly, that to which the proposed treatment is directed - is not correct’ [21]; and (ii) the mode of delivery of the treatment was novel and the intensivist instructed by the Official Solicitor told the Court that he would not be prepared to undertake the procedure in his ICU.

The focus of the oral evidence was not the issue of capacity, since the parties (and ultimately the court) agreed that MB lacked the capacity to make the relevant decision. Rather it was focused on the question of best interests. By the time of the oral hearing, MB’s family were broadly in favour of the treatment being provided. MB on the other hand, who spoke to the Judge, did not accept that he had cancer, and so needed the treatment.  

In addition, the views of the clinicians (both treating and experts) were not aligned. The treating clinicians were of the view that the treatment was in MB’s best interests, as did Dr Martinez-Calle the consultant haematologist instructed by the Official Solicitor. On the other hand, Dr Chris Danbury, the intensivist instructed by the Official Solicitor considered that the admission to ICU in order to deliver the treatment would do more harm than good

This was on any view, an extremely finely balanced case. 

Viewing the evidence in its totality, the Court concluded that the treatment was in MB’s best interests and authorised the plan, concluding:

88.  I accept that having the treatment may if successful prolong his life and that the starting presumption is protection of his life; that the right to life carries with it strong weight and that even and although the estimate of success is put at 20 % within the context of Article 2 EHCR that is not negligible. Even the most pessimistic of the evidence before me does not suggest the treatment is futile.