Case summary: A NHS Foundation Trust v MC [2020] EWCOP 33

In the first such Court of Protection application regarding bone or stem cell donation and involving the Human Tissue Authority, it was held to be in MC’s best interests for her blood stem cells to be donated for the benefit of her mother.

This case will be of interest to practitioners, healthcare providers and commissioners because it provides further guidance on capacity and best interests decisions which do not provide a direct benefit to P.

Practical Impact

Practitioners, health care providers and commissioners should be mindful that:

• This is the first time an application for bone marrow or stem cell donation by someone lacking capacity has come before the Court of Protection (although the High Court has previously dealt with similar cases prior to the MCA 2005) and is also the first time that the Human Tissue Authority (“HTA”) has been involved in a case of this nature. The case therefore gives useful guidance for cases concerning bone marrow or stem cell donation in future.
• In determining best interests in such circumstances, there should be a consideration of not only factors that will have a direct benefit but also the wider context and factors that will indirectly benefit the donee.
• In circumstances where an adult lacking capacity to make decisions regarding bone marrow or stem cell donation has no Lasting Power of Attorney or Deputy who can give consent on their behalf, the case should be brought before the Court of Protection to make a determination.

For further information about this case, please contact Ellen Lloyd.

You can read the full case summary below.

 

A NHS Foundation Trust v MC [2020] EWCOP 33

Relevant Topics

• Capacity
• Mental Capacity Act 2005
• Best Interests
• Stem Cell Donation

Summary

In this case, the Judge was asked to consider whether it was in an incapacitous 18 year old’s (MC’s) best interests to have her stems cells collected and used to benefit her mother who had been diagnosed with chronic leukaemia.

The Judge concluded that it was in MC’s best interests to donate her stem cells for the benefit of her mother.

In reaching this conclusion the Judge considered the following:

• The risks and benefits of the procedure.
• That the procedure had no direct physical benefit to MC herself. However, there were clear emotional, social and psychological benefits to her by her mother’s life being extended.
• Although MC did not understand the details, she could understand that her mother was not well and that she may have the ability to extend her mother’s life. She had repeatedly expressed a wish that she wanted to give what help she could.

In relation to the process undertaken by the accredited assessor when reporting to the HTA on issues of capacity, the Judge stated:  “There should be a considered risk and benefit analysis by the accredited assessor. It [Stem cell donation] could only be beneficial if a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 was performed in each case where the HTA is faced with an issue of capacity of the done”.

Background

This case concerned an 18 year old woman, MC, with undisclosed learning and language difficulties.  An application was brought by an NHS Trust seeking the court’s permission for the collection of peripheral blood stem cells so that they could be donated to her mother who was diagnosed with chronic leukaemia.

MC lived at home with her parents and two younger siblings. Her mother’s life expectancy without a stem cell transplant was estimated to be 12 months. Other members of the family had been screened as potential donors but MC was the only one who was a suitable match.

J Cohen concluded that MC lacked capacity to conduct the proceedings and make decisions about the proposed procedure. The focus in the proceeding was therefore whether it was in MC’s best interests for her stem cells to be collected for the benefit of her mother.

In considering MC’s best interests, J Cohen looked at the risks and benefits to both MC and her mother which were summarised as follows:

Risks

• MC would need repeated screening blood tests and four injections over consecutive days.
• Side effects of the blood tests commonly include pain and flu like symptoms
• Risk of bruising at the injection site.
• The small possibility of other reactions including an allergic reaction or inflammation of the eye,
• After the injections MC would need to attend hospital and have a line inserted into both arms for 4-5 hours.
• If it is not possible to place a needle in the arm, access through the femur under local anaesthetic could be carried out as an alternative and this may require a second visit to hospital.

Benefits

J Cohen confirmed that the proposed procedure would have no physical benefit to MC herself and instead the physical benefit would only be towards her mother:

• Without the transplant, MC’s mother’s prospects were poor – the procedure would increase survival rate to 43 – 45% at 5 years.
• MC lived at home with a loving family and there were emotional, social and psychological benefits to MC of her mother’s life being extended.
• Whilst MC did not understand the details, she understood that her mother was not well and that she may potentially have the ability to extend her mother’s life. MC had repeatedly expressed her wish to give what help she could.
• MC may be seen be others positively by acting selflessly.

J Cohen concluded that it was in MC’s best interests to donate her stem cells for the benefit of her mother – “It is in MC’s best interests as much as her mother’s”.

In his concluding remarks, the Judge expressed his view on the process undertaken by the accredited assessor when reporting to the HTA on issues of capacity. This was in light of concerns raised by the Official Solicitor that there appears to be a  “vacuum” in the law for those under the age of 18 who may have difficulties in capacity. It was noted that the treating Trust holds no duty of care to the donor because its obligations are to the patient (donee). The HTA will only check to see if there is consent (which in the report is cursory) and no payment, or other pressure or coercion has been applied.

In view of this, the Judge expressed the view that: 

“There should be a considered risk and benefit analysis by the accredited assessor. It could only be beneficial if a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 was performed in each case where the HTA is faced with an issue of capacity of the done”.

Key Findings

• In determining best interests, the Court is not confined to considering the direct self-interest of P and indirect self-interest can be a relevant factor. In this case, there were clear emotional, social and psychological benefits to MC by extending her mother’s life.
• In circumstances where an adult lacks capacity and there is no Lasting Power of Attorney or a Court Appointed Deputy who can give consent on their behalf to stem cell donation, the decision should go before the Court of Protection for determination.