NHS Trust v T

An interim declaration may be granted under Civil Procedure Rules 1998, Part 25, in proceedings concerning medical treatment of an adult who may lack capacity. The court must first assess capacity and then determine best interests, using the best evidence reasonably available. The patient should have an opportunity to make representations, directly or through others, unless the emergency makes this impracticable. Relief may address identified treatment in materially identified circumstances and may be reconsidered if circumstances change. An advance directive made without capacity does not determine the patient’s refusal of treatment. Where the evidence shows no likely material change in capacity or medical circumstances, pragmatic considerations may support interim relief before treatment is immediately required.

The NHS Trust sought directions and an interim declaration authorising blood transfusion and necessary stabilising treatment for Ms T, an adult with borderline personality disorder who repeatedly self-harmed and developed life-threatening anaemia. Ms T had signed an advance directive refusing blood transfusion and iron, stating that she understood refusal might result in death. A duty judge had earlier authorised emergency treatment after her condition deteriorated.

The issues included Ms T’s capacity when signing the directive and at the hearing, the effect of the directive, whether an interim declaration was available and appropriate before treatment became necessary, and whether transfusion would be in her best interests.

1. Jurisdiction. The earlier authorities had treated an interim declaration as unknown to the law. The introduction of Civil Procedure Rules 1998, Part 25.1(1)(b), changed that position. The court therefore had jurisdiction to grant an interim declaration in Part 8 proceedings.
2. Approach. The court should make every effort to ensure that the proposed patient has an opportunity to make representations, directly or through others. Capacity must then be determined, followed where necessary by a best-interests assessment, on the ordinary civil standard and the best evidence available. A declaration concerning treatment is founded on the particular circumstances and facts before the court. A material change may require reconsideration of capacity or best interests.
3. Capacity. Applying the guidance in Re MB (Medical Treatment) [1997] 2 FLR 426 and the decision-making approach discussed in Re C (Refusal of Medical Treatment) [1994] 1 FLR 31, the judge found that Ms T could not use and weigh the relevant information in deciding whether to refuse transfusion. Her belief that her blood was evil was treated as a misconception of reality and evidence of disorder. She lacked capacity both at the hearing and when signing the advance directive.
4. Best interests and discretion. Applying the welfare appraisal approach discussed in A v A Health Authority [2002] 1 FCR 481 and Re B (adult: refusal of medical treatment) [2002] 1 FLR 1090, the balance favoured treatment necessary to save Ms T’s life. The declaration was not refused as premature because the evidence indicated no material likely change and recurring, materially similar emergencies were likely.
5. The court declared, until the substantive hearing or further order, that Ms T lacked capacity to make decisions about the specified treatment and that the NHS Trust could administer blood transfusion and other necessary stabilising treatment, using minimum necessary force, where medically advised to preserve life or avoid imminent serious injury to health.

This was a first-instance application for directions and interim relief. The judgment records an emergency order made by Pauffley J on 9 April 2004 authorising treatment pending determination of the issues, but that order was not treated as determinative.