A NHS Foundation Trust v MC [2020] EWCOP 33 (23 June 2020)
How to determine “best interests” in the case of an adult lacking capacity, where a proposed medical donation for the benefit of a close relative may cause lasting harm to the donor?
Here, 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 chronic leukaemia. As Cohen J noted, this was the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity had come before the Court of Protection and the first time the Human Tissue Authority (“HTA”) had been involved in a case of this nature.
MC’s mother had been diagnosed with leukaemia several years previously. The medical advice was that despite repeated cycles of chemotherapy she had not achieved remission and her life expectancy without a stem cell transplant was estimated to be about 12 months. Other members of family have been screened as potential donors but MC was the only one who was a match.
It was established that MC herself, who had long standing learning and language difficulties, did not grasp the implications of the donation procedure.
PBSC donation is not trivial. MC would be required to have repeated screening blood tests and four injections given over consecutive days. The purpose of these injections is to encourage the stem cells to move out of the bone marrow and into the blood stream. The side effects include pain and flu-like symptoms, and the procedure would require hospital visits by MC in the midst of a pandemic.
In determining whether this would be in MC’s best interests, it was important to bear in mind that this procedure would have no physical benefit for MC herself. It would be “entirely to benefit a third party.”
The fact that such a process would obviously benefit the plaintiff is not relevant unless, as a result of the defendant helping the plaintiff in that way, the best interests of the defendant are served. [Re Y (Mental Patient: bone marrow donation) [1997] Fam 110].
On the other hand, Morgan J in Re G (TJ) observed that
The word “interest” in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor. [54] [2010] EWHC 3005 (COP)
In this case, the determination of “best interests” was a relatively easy one to make. For MC’s mother, the stem cell donation procedure would elevate a poor chance of survival to a 43-45% survival rate at 5 years, and that was obviously a “potentially highly significant benefit.” There were clear benefits, emotional, social and psychological, to MC of her mother’s life being extended. It was therefore “overwhelmingly” in MC’s best interest to participate in the proposed programme and donate her stem cells for the benefit of her mother. “It was in MC’s best interests as much her mother’s.”
Despite the clarity of the case before him, Cohen J emphasised the concerns of the Official Solicitor in this unusual set of circumstances:
Apparently, there are about 65 individuals each year under the age of 18 for whom the HTA gives approval for this sort of procedure. It is not known how many of those individuals have difficulties with capacity in the way MC has. MC’s case has come before the court because she is in law an adult in circumstances where there is no Lasting Power of Attorney or a Court Appointed Deputy who can give consent
For those under the age of 18, on the other hand, there is something of a vacuum in the law. The Health Authority only owes a duty of care to the donee; and the HTA is only obliged to check if there is consent (which is sufficient if given by a parent) and that no money has changed hands, which is prohibited.
Nowhere is there at the centre of what is being considered either by the treating Trust or the Human Tissue Authority, the best interests of the donor.
In his concluding remarks, Cohen J called for “a considered risk and benefit analysis by the accredited assessor”, that is, a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 to be performed in each case where the HTA is faced with an issue of capacity of the donee.
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