D v Ministry of Defence (by his litigation friend, the Official Solicitor) (Medical Treatment) [2017] EWCOP 15

Court of Protection case summary

19/12/2017

This case will be of interest to commissioners and providers when considering requests for unapproved or experimental treatment unavailable through the NHS.  The case has echoes of the Charlie Gard case but had a very different outcome, the Court commenting that "all life is an experiment".

Case

D v Ministry of Defence (by his litigation friend, the Official Solicitor) (Medical Treatment) [2017] EWCOP 15

Relevant Topics

  • Capacity
  • Best interests
  • Non-NHS funders
  • Cross-jurisdictional issues

Practical Impact

This case indicates that the Court is not afraid to approve treatment which has unproven benefits, even where this is against both clinical opinion and the submission of the Official Solicitor.

This decision represents a continuation of several trends in the Court of Protection: moving away from a presumption that treating clinicians 'know best', judges being prepared to allow for some risk in achieving best interests and ever greater weight being applied to the preferences of P.

Summary

 

D was a Lance Corporal in the Army.  In 2013, while stationed abroad he was assaulted by another member of his regiment and suffered a severe brain injury.

Mrs B (D's mother) brought an application seeking medical treatment for D; stem cell treatment for his traumatic brain injury, at the 'Swiss Medica' clinic in Belgrade, Serbia. The application was opposed by the Official Solicitor (D's litigation friend) and the Ministry of Defence ('MOD'), which was responsible for commissioning D's treatment.

D argued that this treatment would enable him to be "normal" again. Mrs B had undertaken extensive research on treatment options (initially approaching a clinic in Germany – but it was unable to provide the appropriate stem cell therapy, then Swiss Medica in Moscow before Swiss Medica in Serbia).

The medical staff at X House (military rehabilitation centre) opposed Swiss Medica in Moscow, because stem cell therapy for patients like D was not yet established in Moscow. The MOD objected to the application and submitted an application for an order for D's transfer to a civilian unit (Y hospital) to continue his rehabilitation.

The MOD pointed out that Mrs B "believes very strongly it [stem cell treatment] will work" but suggested that her powerful and understandably natural urge to see her son's injuries improve greatly, had clouded her ability to judge and weigh the efficacy of the treatment against the risks to D's life (and quality thereof) of the experimental procedure. Mrs B's faith in the matter is thought to have influenced D's views slightly. The Official Solicitor supported this view and concluded that it was not in D's best interests to undergo this "unproven and risky procedure."

On consideration of the 'balance sheet approach', the Court gave provisional consent (with conditions) to D travelling to Belgrade to receive stem cell treatment.  This was on the basis that D would be more depressed if he were to be denied this opportunity and it was highly likely that he would begin to exhibit a hostile reaction which could delay his rehabilitation. The Court did not deny that there were high risks involved, although it believed that the move could positively impact D's physical and emotional health, in the long term.

Background

Relevant Chronology:

  • June 2013 – While serving abroad, D was heavily assaulted in a bar by another member of his regiment and knocked unconscious. He was admitted to hospital and found to have sustained major injuries around his head area. He was transferred to a hospital in England. An MRI scan confirmed significant traumatic brain injuries, due to the assault. He is now wheelchair bound.
  • Early 2014 - D transferred to a military rehabilitation centre (X House) where he underwent physical mobility therapy, cognitive/neuropsychological input, and speech/language rehabilitation. He made substantial improvement although, he did continue to suffer significant physical, emotional and cognitive disabilities.
  • 21st April 2016 – Mrs B filed an application in the Court of Protection for orders to determine D's capacity to agree to stem cell treatment in Moscow, and for an order appointing Mrs B as his health and welfare deputy.
  • 26th August 2016 – the MOD, who fund his care, filed an acknowledgement of service indicating it was unsupportive of D's travel to receive stem cell treatment but taking a neutral position. MOD resisted Mrs B's appointment as D's health and welfare deputy and applied for an order for transfer of D to a civilian unit, Y Hospital.
  • Mrs B identified an alternative clinic in Belgrade, Serbia.
  • Late 2016 – hearing to determine issue on D's current residence and transfer to Y Hospital approved, although there was insufficient evidence to determine the treatment issue.
  • Mid 2017 – application for stem cell therapy relisted and after evidence, provisional judgement provided.

Evidence:

  • D - Hopes for the stem cell treatment as he wishes to "be normal" and is adamant the treatment will work for him.
  • Mrs B - compiled substantial research and describes D as "heavily disabled, still young and very depressed." She has relayed pros and cons of the treatment, to D.
  • Dr Bulboh – claims the proposed stem cell treatment at his clinic in Belgrade, Swiss Medica, is "absolutely safe with no risk of allergic reactions, infections" but accepted the treatment is experimental.
  • Dr R – D's treating psychiatrist diagnosed D with an organic personality disorder which leads to D's lack of capacity.
  • Martino – independent expert instructed by OS and MOD. Opposed to treatment as there is no evidence to support Dr Bulboh's claims.
Key Findings

The essence of the claim was the consideration of whether D's best interests were served by travelling to Serbia for experimental stem cell treatment.  The Court took a staged approach, approving D and Mrs B travelling to Serbia for the treatment subject to:

  1. Further reports being considered by the clinic
  2. Dr Bulboh (Serbia clinic clinician) then submitting a report covering whether he continues to recommend the treatment
  3. Detailed care and travel planning
  4. Further report by Dr Bulboh when D is in Belgrade prior to treatment commencing.

This decision was largely based on:

  1. Denying D the opportunity to have stem cell treatment would have had an adverse effect on his behaviour and mental health, which may delay his current rehabilitation.
  2. If D sustained the necessary capacity, he would make the decision to receive stem cell treatment in Belgrade himself (regardless of Mrs B's input) and therefore the provisional decision is in his best interests.
The Court also ordered Dr Bulboh and Mrs B to agree to comply with the directions of the Court.  This was presumably motivated by the Court's lack of jurisdiction in Serbia, however it does not resolve this discrepancy in decisions being made in England to be effected abroad.  How the order is complied with and whether this lack of enforceability becomes a live issue will have to be seen.

 

This case summary was written by Clementine Robertshaw.  Please contact a member of the Mental Capacity & the Court of Protection team for further information.

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.

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