HN (Out of Hours Application) [2016] EWCOP 43 (23 September 2016)

Posted on Thursday, January 26th, 2017

HN suffers from depression and has some psychotic beliefs. She is detained under s3 Mental Health Act 1983 at a hospital run by the applicant NHS Trust.

HN sustained a number of injuries in the course of an apparent suicide attempt, including a severe injury to her shoulder. She had refused most treatment for her injuries though these were, for the most part, healing. However, her shoulder was more severely damaged and required urgent surgery. It was envisaged that HN might resist treatment to the extent that restraint would be necessary to ensure that she was anaesthetised.

HN was considered to lack capacity to consent to treatment therefore an out of hours application was made in the Court of Protection. The Trust recognised that the planned surgery could potentially involve a deprivation of HN’s liberty over and above that authorised by her detention under s3 Mental Health Act. As HN was detained at the hospital where it was proposed that the operation would be carried out, Case A of Schedule 1A to the Mental Capacity Act applies and she is ineligible to be deprived of her liberty pursuant to the MCA 2005. The authorisation of the High Court’s inherent jurisdiction was therefore sought in accordance with A NHS Trust v Dr. A [2013] EWCOP 2442.

The Honourable Mr Justice Peter Jackson heard detailed evidence setting the background to the case, the planned surgery and the pros and cons of going ahead as proposed. He was also provided with evidence relating to HN’s physical and psychiatric symptoms. Mr Justice Jackson concluded that it was in HN’s best interests to have the operation in order to prevent much more serious harm, and he authorised the operation to be performed as soon as possible.

The full judgment can be read here.

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