Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 46
Holding the Risk in Medical
Treatment Cases
by Alex Ruck Keene
to Medical Treatment, [2020] EWCOP 22, which, in
turn, drew on the decision of the Supreme Court in
NHS Trust v Y. That guidance made clear that, where
the decision is 昀椀nely balanced, “it is highly probable
that an application to the Court of Protection is
appropriate. In such an event consideration must
always be given as to whether an application to the
Court of Protection is required;” if the decision
related to life-sustaining treatment, the guidance
went on to provide that an application to the Court
of Protection must be made.
Re RS (Best Interests: Surgery and Intensive Care)
[2025] EWCOP 38 (T3)1 is a case which demonstrates
the care and thought which – rightly – should go into
ensuring that those with cognitive impairments are
put forward for appropriate physical procedures, and
also contains some very helpful wider observations
about the role of the courts in such cases.
The person concerned was RS, a 18 year old man
with a complex range of physical and cognitive
impairments. The procedure envisaged was surgical
correction to curvature of his spine. However, the
choice was a stark one:
“
In RS’s case, the treatment was not life-sustaining or
life-giving (which may explain why the application
was not brought by the treating bodies, as would be
expected, but rather by RS’s mother), but it would
have implications for RS’s life expectancy.
35. […] There is no conservative treatment that will
help RS’s scoliosis. There is no safe way of o昀昀ering
him surgery without the elective post-operative
intensive care under heavy sedation, intubation and
mechanical ventilation. He either has the corrective
surgery and post-operative mechanical ventilation or
he has no treatment for his scoliosis at all.
Poole J gave a very helpful explanation of his
approach to the question of (in e昀昀ect) the legitimacy
of a judge making the decision as to whether the
surgery should proceed:
RS lacked capacity to consent or to refuse consent to
the treatment, and, as Poole J noted at paragraph 2:
“
Notwithstanding a long and detailed medical
decision-making process, concerns remain that
the way forward in RS’s case is 昀椀nely balanced. In
fact there is a broad measure of agreement between
RS’s mother, GH, the surgeon who would carry
out the operation, independent expert witnesses,
the providers of a second opinion to the treating
clinicians, and the O昀케cial Solicitor, acting as
RS’s Litigation Friend. No party contends that the
proposed treatment is contrary to RS’s best interests.
However, all involved agree that the decision is 昀椀nely
balanced and the healthcare professionals who would
provide the post-operative treatment are particularly
anxious for con昀椀rmation from the Court that it will be
in RS’s best interests.
The reference to ‘昀椀nely balanced’ was a reference
to the guidance contained in Applications Relating
EXPERT WITNESS JOURNAL
43
“
36. Medical professionals are much more experienced
than judges in making decisions about whether a
particular treatment or operation is in a patient’s
best interests but in this case, as Dr Tremlett put it,
after months of intense assessment and discussion,
he and other professionals of enormous experience
have oscillated. They regard this as a 昀椀nely balanced
decision. In accordance with the guidance referred
to at the outset of this judgment, the decision has
properly been brought to Court of Protection for
resolution.
“
37. Whilst NHS Trusts and clinicians have to take
into account other matters such as the allocation of
resources and the impact on others of providing or
not providing the proposed treatment, the Judge in
the Court of Protection is required by statue only to
consider the subject individual’s best interests. The
Court cannot require resources to be allocated or force
clinicians to provide treatment they are not willing
to provide, but when there are choices to be made
DECEMBER/JANUARY 2025-2026
