The Court of Protection in Cardiff has ruled that a woman should have surgery against her wishes.

In the case of A Local Health Board and AB [2015] EWCOP 31, the unnamed woman (AB) is autistic and suffers from schizophrenia. She was assessed as not having the capacity to make decisions about health treatment. Medics said she had a life threatening cardiac condition which if left untreated, significantly increased her chances of a rupture which would lead to certain death.

She was clear in her views that she did not want the surgery and she feared not waking up from the anaesthetic; however, she was also clear that she did not want to die.

The judge had to strike a balance between the risks to the woman of having the surgery, against the benefits it may bring. She recognised that imposing surgery on someone against their wishes was a serious step which should only be taken when necessary. She ruled that the medical evidence was uncontroversial and decided that it was not in the woman’s best interests to ‘wait and see’ what would happen if she did not have the surgery.

These are not easy decisions for any person to make. The life of another is in your hands. Of course there is always a risk to a person’s life where surgery is involved, but those risks have to be balanced against the risk of doing nothing.

Many people have commented that a person should not be forced to undergo surgery against their will and it is against their human rights. But it must be remembered that this lady had been assessed as not having capacity to make the decision. If she had capacity, there would have been no role for the court and the hospital would not have been able to force her to have surgery against her will.

Every person over the age of 18 is presumed to have capacity until it is proved otherwise. The test for whether a person has capacity is found in the Mental Capacity Act 2005. It relates to a person’s ability to understand relevant information, retain information, weigh up that information and communicate the decision. It meant that despite the medical team explaining to her the benefits of undergoing surgery she was not able to comprehend the relevant information in order to reach a balanced decision.

You may be of the view that a court has no role in today’s society to make decisions on behalf of people. But imagine if this lady was your relative; if you knew that she was at continuous high risk of death from a ruptured aneurism and that her best chance of a longer life was to undergo this surgery, what would you do?

When a person is not able to make their own decision, then surely the best way to respect their human rights is for a substituted decision maker to make that decision for them.

When children need to undergo surgery and are too young to understand the risks and benefits involved, often their parents will make the decision for them. Most people would agree there is nothing wrong with that; you cannot expect a child to weigh up the risk of mortality or complications against the benefits of a medical procedure. The Court of Protection is there to provide a similar although more nuanced role for vulnerable adults.

The decisions faced by judges within the Court of Protection are often difficult and not straightforward. They require a careful balancing exercise to reach a decision in the person’s best interests.

As a society we need to protect our most vulnerable members, even to the extent of making decisions against their wishes if it protects them from harm. Open and informed debate about these hugely significant decisions matters, even more so that we now have a government that has pledged to abolish the Human Rights Act.

For more information on this, please contact us on 01484 538421 and ask to speak to a member of the Court of Protection team.