An NHS Foundation Hospital v P

A court may override the refusal of a Gillick-competent child to undergo life-saving medical treatment where the treatment is objectively in the child’s best interests. The child’s wishes and feelings are important, particularly at 17, but are not decisive. The court must balance them against the risk of serious harm or death, having regard to the child’s welfare and relevant Convention rights.

For a person aged 16 or over, capacity is determined under the Mental Capacity Act 2005. Capacity is presumed, and an unwise decision does not of itself establish incapacity. In an emergency, the court may make an immediate declaration authorising treatment, including sedation or restraint amounting to a deprivation of liberty, subject to later review and a time limit.

An NHS foundation hospital applied urgently for declarations concerning the treatment of P, a 17-year-old girl who had taken a paracetamol overdose and initially refused the antidote. Her mother consented, but the hospital sought judicial authorisation because a psychiatrist considered P to have capacity, while the treating physician had doubts.

The application was heard out of hours because treatment was required within approximately eight hours to avoid serious liver damage and possible death. The central questions were whether P lacked capacity under the Mental Capacity Act 2005 and, if she was capable of refusing treatment, whether the court should nevertheless override her refusal under its inherent jurisdiction.

1. Capacity. Capacity was governed by the Mental Capacity Act 2005, which applies to persons over 16. The statutory principles include the presumption of capacity, the requirement to take practicable steps to assist decision-making, and the rule that a person is not incapacitated merely because she makes an unwise decision. On the limited evidence, the court was not satisfied that P lacked capacity under sections 2 and 3.
2. Authority to override refusal. A Gillick-competent child has legal capacity to consent to treatment, but the court may exercise its inherent jurisdiction to override the child’s refusal where treatment is in the child’s best interests. The child’s welfare is paramount. Her wishes and feelings, especially given her age and proximity to adulthood, are important but not decisive.
3. Balancing welfare and rights. The risk of untreated paracetamol poisoning was death or severe permanent injury. That risk outweighed P’s refusal. Her Article 8 rights were relevant but not absolute, and were outweighed in the circumstances by the protection required for her life under Article 2 of the ECHR.
4. Emergency measures and review. The court declared treatment lawful and in P’s best interests notwithstanding her refusal. It also authorised, if necessary, sedation or restraint amounting to a deprivation of liberty. The order was made before P could be heard because every minute increased the risk, but directions were given for an urgent later challenge. The order was to expire within 28 days unless extended on application.

First-instance decision. No earlier appellate decision is stated in the judgment.