Sophie Hurst acted for the Royal Orthopaedic Hospital NHS Foundation Trust in the recent case of Re RS (Best Interests: Surgery and Intensive Care) [2025] EWCOP 38 (T3) in which Mr Justice Poole considered whether or not it was in the best interests of P to undergo major spinal surgery with an aftercare plan which included a period of elective ventilation and intubation.
Link to judgment: https://www.bailii.org/ew/cases/EWCOP/2025/38.html)
The judgment highlights the care required when considering medical procedures and aftercare for individuals with cognitive impairments and provides helpful observations as to the role of the Court of Protection in such finely balanced decision making:
[41] Judges are not inherently better at assessing risks and benefits than those intimately concerned with a person’s care and treatment, including parents and medical professionals, but there are differences:
41.1. Judges have some distance from the person whose treatment is under consideration. Unlike those intimately involved with the individual’s care, judges will not have responsibility for carrying out the treatment, dealing with complications, or living with the direct consequences of the decision.
42.2. Judges can hear evidence from key witnesses, including independent experts, scrutinised by experienced Counsel, in a formal court setting to assist them to assess risks and benefits and to assess best interests.
42.3. Judges can take a neutral overview having taken into account the family’s perspective and the clinicians’ perspective.
[42] It might be argued that some of these differences place judges at a disadvantage. Some would say that fundamental decisions about a person’s medical treatment should be made by those who know them best and who will be living with the consequences. However, the law requires that when disputed or finely balanced decisions regarding medical treatment of this kind are brought before the Court, it is the Judge who makes the decision as to what is in the person’s best interests, applying the principles and provisions of MCA 2005. Court procedures are designed to ensure fairness to all the parties involved. The process requires the judge to be objective. Responsibility for the decision is taken away from the family and the clinicians who may find objectivity difficult to achieve and is placed in the hands of the Judge. Precisely because the Judge is one step removed from the day to day care of the individual, they may find it easier to take a balanced overview than those with a particular, personal perspective.
This decision will be of interest to all Court of Protection practitioners and is likely to become an important reference for cases involving intensive, post-operative care planning.
Sophie was instructed by Ms Isobel Matthews and supported by Ms Lauren Novelli of Mills & Reeve Solicitors.
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