An NHS Trust v HN [2016] EWCOP 43


  • Court of Protection
  • Serious Medical Treatment
  • Deprivation of Liberty

Practical Impact

  • Judge orders serious medical treatment operation out of hours and without hearing from oral witnesses.


The Court was asked to authorise an urgent operation to be performed on HN in her best interests.


HN was a woman in her fifties suffering from depression and had some psychotic beliefs. She was detained under section 3 of the Mental Health Act 1983.

HN sustained a number of injuries during the course of an apparent suicide attempt, including a severe injury to her shoulder. HN refused most treatment for her injuries.

The condition of the injury put HN at risk of infection (potentially sepsis) the possible consequences being very serious –
a) it could prevent reconstructive surgery;
b) it could lead to the need to amputate HN's entire arm and also part of her shoulder, leaving a major physical disability and disfigurement;
c) the infection could be life-threatening spreading within a matter of days.

It was envisaged that HN might resist treatment to the extent that restraint would be necessary to ensure that she was anaesthetised.

HN lacked capacity to consent to the treatment; she was unable to use and weigh the relevant information including what the clinicians wanted to do and why, and the risks of both having and not having the operation.

It was also considered that the planned operation could potentially involve a deprivation of HN's liberty over and above that authorised under section 3 MHA and she would be ineligible to be deprived of her liberty under the MCA (Case A).

Key Findings

Permission was granted for the urgent operation to take place the following morning. It was in her best interests to have this relative minor operation in order to prevent much more serious harm. The Court was provided with detailed evidence in the form of witness statements covering all material issues. Therefore there was nothing to be gained by hearing oral evidence or by prolonging the proceedings further. HN was not spoken to directly by the Judge but her views were set out in the evidence.

The case demonstrates the importance of speedy and comprehensive evidence gathering enabling the Court to make findings without delay.


Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.