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Cancer ruling welcomed

1 June 2010

The Court of Protection’s decision to grant an NHS trust the right to sedate a cancer patient in order to provide necessary hospital treatment has been welcomed as a step forward in healthcare law.

In its second ever public judgment, the case of DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam) dealt with as 55-year-old woman suffering from cancer of the uterus whose fear of hospitals left doctors unable to carry out lifesaving surgery.

Kiran Bhogal, partner at Weightmans and head of their healthcare advisory department, said: “While there will undoubtedly be a cohort of people who will consider that it is wrong for courts to interfere, there will equally be circumstances when this is the only way to ensure that the health and well being of the individual is maintained having regard to the governing legislation."

Jane Tracy Forster, instructed by Browne Jacobson and representing the NHS trust, successfully argued that doctors should be granted permission to sedate the woman at home in order to admit her to hospital regardless of her wishes.

In addition to a phobia of hospitals and needles, PS was described as having a learning disability which deprived her of the capacity to make decisions about her treatment.

Mr Bhogal added: “The approach adopted by the court to make public the judgement in this instance is welcomed not only because it provides further guidance as to when it may be reasonable to use force, subject to it being proportionate, but also because it demonstrates that the courts are not against the use of sedation at appropriate levels and under proper supervision if, and only if, the particular circumstances of the case warrant this. However this is not the first time the court has approved the use of sedation and moderate and reasonable use of restraint in the patient's best interests."

Found unable to conduct proceedings herself under the Mental Capacity Act 2005, PS was represented in court by Parishil Patel, instructed by the Official Solicitor.

Giving judgment, Sir Nicholas Wall, president of the Family Division, said: “I am entirely satisfied that it was right to make the declarations sought by the trust and although the application is unusual and may involve the use of force, I am nonetheless impressed by the care and thought which have gone into ensuring that PS receives the treatment which she plainly needs and which it is plainly in her interests to have.”

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Procedures Costs Vulnerable Clients