A NHS Foundation Trust v MC (by her Litigation Friend the Official Solicitor)

JurisdictionEngland & Wales
JudgeMr Justice Cohen
Judgment Date23 June 2020
Neutral Citation[2020] EWCOP 33
Date23 June 2020
Docket NumberCase No: COP13588927
CourtCourt of Protection

[2020] EWCOP 33

COURT OF PROTECTION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HON. Mr Justice Cohen

Case No: COP13588927

Between:
A NHS Foundation Trust
Applicant
and
MC (by her Litigation Friend the Official Solicitor)
Respondent

Miss Katie Gollop QC (instructed by Hill Dickinson LLP) for the Applicant

Ms Bridget Dolan QC (instructed by The Official Solicitor) for the Respondent

Hearing dates: 23 June 2020

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Cohen

Mr Justice Cohen

The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Cohen

The Honourable

1

MC is the subject of an application by an NHS Trust seeking the court's consent for the harvesting of peripheral blood stem cells so they can be donated to her mother who has chronic leukaemia.

2

MC is now just 18 years old and as a result, in a case where an adult lacks capacity to make decisions, the court must make the decision instead. So the first matter I must ask myself is whether MC does lack capacity.

3

In order to assist me in that decision I have two reports of Dr C. It is unnecessary where everyone, not just the Trust but also the Official Solicitor who acts on MC's behalf, agrees she lacks capacity to go into details; suffice it to say that it is agreed she is unable to make decisions for herself to give informed consent for the collection of stem cells and their use.

4

Doctors and the Official Solicitor have discussed with MC on a number of occasions how peripheral blood stem cells are collected and what risks are connected with that procedure; how they are stored, and how they are used for the benefit of the mother. They have reported back that MC has not been able to repeat back in a coherent manner what has been said to her or demonstrate an understanding of the process. This is a result of long-standing learning and language difficulties.

5

I am told that this is the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity has come before the Court of Protection and the first time the Human Tissue Authority (“HTA”) has been involved in a case of this nature. This is why we have taken the case more slowly than might otherwise be the case and why I am giving this judgment.

6

Having come to the clear conclusion that MC lacks the capacity to conduct these proceedings and make decisions about the proposed procedure, it is necessary for me to consider her best interests. That raises two separate issues: (1) whether it is in MC's best interests for her stem cells to be harvested for the benefit of her mother; and (2) whether the court should consent to the procedure.

7

MC lives at home with her parents. It is clear to me from everything I have read that she has a loving relationship with them and they with her. She has two younger siblings. Sadly, MC's mother was diagnosed with leukaemia several years ago. The medical advice now received is that notwithstanding being treated with repeated chemotherapy she has not achieved remission and her life expectancy without a stem cell transplant is estimated to be about 12 months.

8

Other members of family have been screened as potential donors but MC is the only one who is a match and, in particular, as the oldest of the siblings, she would be a much better match than her younger siblings, having a body weight more similar to her mother's and thus the capacity to provide more stem cells than her siblings.

9

In considering these matters it is always important to look at what the potential downside or risks may be. MC would be required to have repeated screening blood tests and four injections given over consecutive days. Fortunately these can be given at home without her having to attend at hospital. The purpose of these injections is to encourage the stem cells to move out of the bone marrow, into the blood stream.

10

The injections do carry side effects, most commonly pain and flu like symptoms. These can be effectively managed with...

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1 firm's commentaries
  • Altruistic cell donation: Parens patriae.
    • United Kingdom
    • LexBlog United Kingdom
    • 3 July 2020
    ...Human Rights blog has provided a note on A NHS Foundation Trust v MC [2020] EWCOP 33 (available on BAILII). “MC was the subject of an application by an NHS Trust seeking the court’s consent for the harvesting of peripheral blood stem cells so they can be donated to her mother who has chroni......

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