Your health in the Court’s hands

kaj-(2)A recent controversial decision has been made by the Court of Protection, after deciding that it is in the best interests of the 61 year old lady to face life threatening surgery.

The lady named K for the purposes of this case, suffers from severe schizophrenia and has sadly been diagnosed with having cancer of the uterus. However, K has a belief that she does not have cancer and therefore the operation is not required.

  • In cases of this nature the first element that must be decided is whether the person in question has capacity to make the decision alone. This case is another illustration of the importance of the fundamental principle enshrined within the Mental Capacity Act 2005  that a person must be assumed to have capacity unless it is proven otherwise. In this case it was decided by Mr Justice Holman that K does not have capacity to make such a decision.
  • The final element in this decision was whether it was in the overall best interest of K to undergo life threatening surgery in order to help cure the cancer of the uterus. This decision was made extremely difficult by various factors which meant that the medical procedure would put her life at risk.

In coming to the decision the judge mentioned that K’s three adult children all expressed their wish for her to have the operation due to the risks being outweighed by the benefits of curing the cancer. On balancing the best interests of K, the judge agreed with her children’s opinion and ordered that such a procedure be permitted. The judge added that “in such cases the Court cannot order for such medical procedures to be carried out but merely permit them” to happen and that is was for the medical experts to decide whether the treatment is justified.

Interestingly this expensive legal procedure involving the Court of Protection could have been avoided had she made a Health and Welfare Lasting Power of Attorney whilst she had capacity.

Blacks Solicitors has a wealth of experience in creating Lasting Powers of Attorney’s and is able to assist those wishing to express their wishes over their future health.

Katherine Ann Jordan
Private Client Department
0113 227 9231      

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