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Re SW [2017] EWCOP 7

Application to the Court of Protection by the attorney of a person said to lack mental capacity that that person should be permitted to donate bone marrow to her adoptive brother who required a bone marrow transplant.

This case related to two individuals referred to as SAN and SW.  SAN was said to be suffering from multiple myeloma, a form of haematological cancer.  It was said that unless he had a bone marrow transplant he would die within 6 months.  SW, SAN's adoptive sister, was proposed as a donor.  It was said that SW lacked capacity to consent to the procedure and therefore the matter came before the Court of Protection. 

The case was brought to the Court of Protection by SW's son who was appointed as her attorney under registered Lasting Power of Attorneys for both Health and Welfare and Property and Financial Affairs.  The application form identified two persons to be notified: Dr Waghorn (SW's husband) and Dr Jooste (family friend and colleague of Dr Waghorn).  It transpired during the course of the proceedings that both Dr Waghorn and Dr Jooste had been erased from the Medical Register following separate Fitness to Practise Panels of the Medical Practitioners Tribunal Service.  It was proposed that Dr Waghorn would undertake the procedures on SW and SAN.  (Dr Waghorn and Dr Jooste were not joined as parties to the proceedings.)

There had been a previous application made to the Court of Protection by Dr Waghorn as attorney for SAN, pursuant to a registered Lasting Power of Attorney (Health and Welfare).  Newton J concluded that "there is no evidence that [SAN]…does not have capacity…..(indeed quite the contrary)".  SAN had also made it clear at that point (December 2014) that  he did not want the treatment to be pursued at this time. 

The Court held:

  1. There was insufficient evidence before the Court to consider whether SW lacked capacity.  It was therefore not established that the Court of Protection had jurisdiction.
  2. Even if lack of capacity had been established, there had been no discussion or consultation with SW about this application.  Similarly, there had been no discussion or consultation with SAN about this application.
  3. Even if SW lacked capacity, under the Human Tissue Act 2004 and The Human Tissue Act 2004 (Persons Who Lack Capacity to Consent and Transplants) Regulations 2006, the proposed transplant could not lawfully proceed without an application being made to the Human Tissue Authority.  This had not happened.  No such application could be made in any event because neither Dr Waghorn nor Dr Jooste are registered medical professionals.  Regardless of the decision of the Court of Protection, this procedure cannot therefore happen. 
  4. The Court concluded that "this scarcely coherent application is totally without merit, it is misconceived and it is vexatious".  The application was struck out and costs were awarded against SW's son, Dr Waghorn and Dr Jooste.

Summary by Sarah Jennings, barrister, 3PB
_________________________________

This judgment handed down in open court

There is a reporting restriction order in force prohibiting the naming of the applicant and of SW and SAN

Case No: COP 1259914
Neutral Citation Number: [2017] EWCOP 7
COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12 April 2017

Before :

SIR JAMES MUNBY PRESIDENT OF THE COURT OF PROTECTION

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In the matter of SW

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Ms Nageena Khalique QC (instructed by Mills & Reeve LLP) for the Human Tissue Authority
The applicant and the notified parties appeared in person


Hearing date: 3 March 2017

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Judgment
Sir James Munby, President of the Court of Protection :
1. SAN is said to be suffering from multiple myeloma, a form of haematological cancer. It is said that unless he can have a bone marrow transplant from a donor – an allogeneic transplant – he will die. As the applicant puts it in his skeleton argument dated 27 February 2017, "Allogeneic bone marrow transplantation is the only means of survival for [SAN]." The proposed donor is SAN's adoptive sister – they are not blood relatives – who I will refer to as SW.

2. The matter has been before the courts on previous occasions. The current application, dated 27 January 2017 and issued in the Court of Protection, relates to SW, who it is said lacks capacity. The applicant is SW's son, who I will refer to as the son. Neither SAN nor SW is a party. The only respondent is the Human Tissue Authority.

3. Two people were identified by the son in his application form as persons to be notified: Dr David Anthony Waghorn, who is SW's husband and the son's father, and Dr Petrus Jacobus Jooste, who is a family friend and a colleague of Dr Waghorn. In his witness statement dated 7 February 2017, the son described his father's role as follows:

"Dr David Waghorn has offered, therefore, to provide the life saving treatment, on a compassionate basis, to [SAN] using the stem cells (transplantable material) from [SW]. Dr David Waghorn is a qualified medical doctor, but not state-registered, having previously practiced bone marrow transplantation."

This was elaborated in his skeleton argument dated 27 February 2017:

"Neither of the proposed Joint Applicants, Dr David Waghorn and Dr Petrus Jooste, who have clinical responsibility for SW, are registered medical practitioners, having relinquished their membership with the General Medical Council in order to continue their specialized medical practice pursuant to Part VI of the Medical Act 1983."

4. The relief sought in the application form was "A Health and Welfare Order giving authority to remove transplantable material for the purpose of transplantation", more specifically,

"An allogeneic haematopoietic stem-cell transplantation, myeloblative or non-myeloblative as a tandem transplantation following response to a previous autologous haematopoietic stem-cell transplantation; as the recipient may have less than 6 months to live."

In his skeleton argument, the relief sought was formulated by the son as follows:

"It shall be lawful notwithstanding the [HTA's] refusal to consent and the court finding it is in [SW's] best interests for the Applicants and/or for the doctors having responsibility for SW's care to carry out a bone marrow transplant procedure and any necessary prior treatment and investigations for SW relative's condition of [Multiple Myeloma] for such a procedure to be carried out."

In his witness statement, the son stated that he was also seeking declaratory relief "in assertion of articles 2 and 8 of the Human Rights Act 1998" – a claim that was neither elaborated nor subsequently explained.

5. Dr Waghorn and Dr Jooste each filed an acknowledgement of notification dated 19 February 2017. Each gave his title as "Dr". Each stated that he wished to be joined as a party and consented to the application. Dr Waghorn stated his interest in the proceedings as follows:

"I am a medical doctor, having relinquished my registration with the General Medical Council in order to continue my specialist medical practise.

I have agreed to carry out the proposed medical procedure, with the assistance of a Senior Consultant in Haematology and under the supervision of a Professor of Haematology, which is a World's first, in type of transplantation."

He formulated the order he was seeking as follows:

"By Consent it is ordered that:

1 If the Applicant delivers up an Allogeneic Bone Marrow Transplantation (Allo SCT) for the primary cure of his brother-in-law, [SAN's] Multiple Myeloma cancer.

2 That there is nolle prosequi of proceedings of the Applicant by the Respondent pursuant to section 4(7) of the Cancer Act 1939." 1

Dr Jooste stated his interest in the proceedings as follows:

"I am a medical doctor, having relinquished my registration with the General Medical Council in order to continue my specialist medical practise. 

I have known the person to whom the application relates for over 10 years and can certify to the Court that person's medical condition, as I have done previously."

6. In fact, both Dr Waghorn and Dr Jooste have had their names erased from the Medical Register following determinations by different Fitness to Practise Panels of the Medical Practitioners Tribunal Service, the one, in the case of Dr Waghorn, on 26 July 2013 and the other, in the case of Dr Jooste, on 17 February 2014. In each case the Panel's findings make for very disturbing reading.

7. In relation to Dr Waghorn the Panel said this

"The Panel accepts that the matters before it relating to patient care arise from the treatment of one patient. However, they represent such a wide-ranging and serious set of clinical failings and such a cavalier and uncaring approach to patient safety that, even viewed in isolation, they demonstrate misconduct that is fundamentally incompatible with the practice of medicine. That misconduct is compounded by the fact that it occurred with foreknowledge of the wholly inadequate conditions under which Patient A was to be treated and it involved the criminal offence of carrying on a hospital without registration with the CQC. The misconduct is also exacerbated by Dr Waghorn's breaches of the conditions that had been put in place to prevent any repetition and by his dishonesty in trying to disguise the extent of his subsequent work at the same clinic."

In fact, as appears from the Panel's determination, Dr Waghorn had been convicted at the City of Westminster Magistrates' Court on 9 June 2011 of an offence contrary to section 11(1) of the Care Standards Act 2000 of carrying on an Independent Hospital without being registered in respect of it under Part II of the Act.

8. In relation to Dr Jooste the Panel said this:

"Dr Jooste is a risk to patient safety … 

The Panel also considers that there is a risk to patient safety in Dr Jooste's unwillingness to accept or comply with the authority of his regulator, in that he seems not to acknowledge any restriction or control on his practice and will not be called to account. Dr Jooste has behaved in an outrageous manner in his conduct towards the Interim Orders Panel and witnesses and in the entirely unmeritorious applications he has made to the High Court. 

The Panel has received no evidence of any mitigating factors …

The panel has concluded that suspension would be wholly inadequate to mark the seriousness of Dr Jooste's misconduct or to protect public confidence in the profession.

… The Panel has rarely encountered a doctor to whom so many of the indicative criteria for erasure apply. In short, Dr Jooste's misconduct is fundamentally incompatible with his continued registration as a doctor."

9. As appears from his application form and the attached Annex E, the son made the application as SW's attorney under a Lasting Power of Attorney (Health and Welfare) purportedly executed by SW on 18 October 2014 and registered on 9 January 2015. He had also been appointed SW's attorney under a Lasting Power of Attorney (Property and Financial Affairs) purportedly executed by SW and registered on 17 June 2015. SW's signature on the first of these documents had been witnessed by Dr Waghorn. The certificate declaring that SW understood what she was doing and was not being pressurised was given by Dr Jooste on 23 October 2014, who described himself as SW's "friend for 10 years." Both Dr Waghorn and Dr Jooste were described as "Dr" though each had by then been struck off.

10. I have referred to the fact that there have been previous proceedings. On 8 December 2014, Newton J gave judgment in the Court of Protection in proceedings (COP12599814) relating to SAN and the proposed treatment of his condition, in which Dr Waghorn appeared on behalf of SAN apparently pursuant to a lasting Power of Attorney (Health and Welfare) granted on 5 September 2013.

11. So far as material for present purposes, what Newton J said was this:

"… in order for the Court to exercise jurisdiction, in the Court of Protection, there has to be evidence that the patient does not have capacity … 

The short [point] here is that all the evidence, in fact, points the other way. In fact there is absolutely no evidence that he lacks capacity at all, indeed quite the reverse. My attention has been drawn to the letter dated 16th October 2014 from Dr Bray which makes it clear that Dr Hunter, who is the consultant haematologist who is currently treating [SAN], is sure that he has full capacity regarding the decisions concerning his own health, but did not wish to pursue those other treatments.

Enquiries both of the insurers, and the legal advice by the medical group confirm that [SAN] has capacity, there is therefore no need for any best interests decision involving his power of attorney. In fact, Dr Bray spoke to [SAN] and he made it very clear that he did not wish for this matter to be pursued at that time and would like things left as they were. That point of view was reiterated by [SAN] himself as recently as Thursday of last week, when enquiries were made on behalf of NHS England. He made it plain that he was currently in remission, that he did not wish for the treatment to be pursued, and that he did not wish there to be court action.

Dr Waghorn feels that that very acutely, not least because of his expertise as a doctor, but also I have no doubt because of his concern and affection for his brother-in-law, he is deeply anxious that his brother-in-law simply does not grasp the full effect and indeed understanding of (A) his illness, and (B) what may be done to alleviate or assist him. And that is a point to which Dr Waghorn has repeatedly returned. But, counsel has pointed out, it seems to me correctly that that is for those are dealing with matters or treatment, and it is not for me in arrangement without first being able to establish lack of capacity …

It is a short point. As I explained to Dr Waghorn, in order for the Court to deal with the matter I have to have jurisdiction:  there is no reason to believe, that he does not have capacity, as the lawyers or doctors understand it. His own treating clinician believes that he has capacity, she having treated him for some time. It is clear, as I understand the evidence, that he has consented to and understands his medical condition and the treatment options, as is plain from the papers. [SAN] himself does not agree that he lacks capacity: he believes that he has capacity to make decisions about his medical treatment and does not, in fact, agree with this application being made. The practitioner who spoke to him as recently as last week also considered, that he also did not lack capacity.

Therefore, whilst I understand the position in which Dr Waghorn has found himself, in my judgment I do not think, and indeed I am entirely satisfied that I do not have the jurisdiction to make any decisions in relation to [SAN's] medical condition and treatment. I have no jurisdiction because there is no evidence that he does not have capacity, even on an interim basis (indeed quite the contrary)."

12. A subsequent application for permission to apply for judicial review (CO/1708/2015) by SAN and D&P Legal LLP, a company of which the directors were Dr Waghorn and Dr Jooste, this time brought against the National Health Service Commissioning Board and the Secretary of State for Health, was dismissed on 9 June 2015 by Hayden J as being "totally without merit." The judge observed that "The claim is at best vexatious, nor is it presented in any coherent or logical manner."

13. There is a common thread to all three sets of proceedings, the purpose in each case being to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

14. On 22 February 2017, in response to a letter from the son dated 20 February 2017, I made an 'own motion' order giving leave to notify the national media via the Press Association's CopyDirect service. On 26 February 2017, the son gave notice via CopyDirect of his application for a Reporting Restriction Order.

15. Dr Waghorn sought to enlist the interest, and indeed involvement as intervenor in the present proceedings, of the well-known Anthony Nolan charity. On 28 February 2017 he received this stinging rebuff:

"… I would like to underline that we do not want to be involved in this case.
Anthony Nolan's position is that allogeneic stem cell transplantation should be provided by registered specialist transplant physicians in an accredited NHS or accredited private transplant centre setting.

As such we do not want to be involved in this case in any way.

Please do not contact us again about this case."

Dr Waghorn's riposte was to threaten the writer of that letter with a subpoena to attend the hearing on 3 March 2017 – a threat which appears not to have been carried through.

16. Perhaps unsurprisingly, solicitors acting for the HTA had sought clarification from the son. In an email sent on 27 February 2017, they asked for "details of what you propose on behalf of your mother and the precise nature of the Order that you seek from the Court of Protection." The son's response was to send them a copy of his skeleton argument. By an email sent on 28 February 2017, the solicitors asked the son to:

"clarify the following:

• Is it the position that Dr Waghorn and Dr Jooste do have clinical responsibility for SW or that they do not? …

• Is [SAN] aware of this application and why has he not been joined as a party?

• Are [SAN's] medical practitioners (or the Trust where he is receiving care) aware of this application and why have they not been joined as a party?"

The son's response, in an email sent on 1 March 2017, was unhelpful and uninformative:

"In response to your questions:

• You will have to contact Drs Jooste & Waghorn as to their position.

• Is your position that [SAN] should be made party to this application?

• I do not know the position with regards to [SAN's] continuing care."

The solicitors responded on 2 March 2017 with this apposite observation:

"I note that your application states that the 'recipient [of the bone marrow transplant] may have less than 6 months to live' however in correspondence you have informed me that: 'I do not know the position with regards to [SAN's] continuing care'. On this basis I am unclear why you consider this to be an urgent matter and why you have not established [SAN's] wishes and needs before making this application or at the very least joining him as a party to these proceedings so that he could make his wishes clear to the Court."

17. In accordance with directions I had given, the son's application came on for hearing before me on 3 March 2017. The son, together with Dr Waghorn and Dr Jooste appeared in person. They sat together in the well of the court and seemed throughout to be making common cause and acting together as a 'team'. The HTA was represented by Ms Nageena Khalique QC. Happily for the proper administration of justice in this application, she had acted for respondents both in the earlier proceedings before Newton J and in the earlier proceedings before Hayden J and was thus able to bring to my attention a number of matters of which I would otherwise have been unaware – not the least important being the true status of Dr Waghorn and Dr Jooste, concealed from the court by the misleading presentations common, as we have, to the son, Dr Waghorn and Dr Jooste.    

18. At the outset of the hearing I made a reporting restriction order in standard Court of Protection 'pilot' form which had the effect of preventing identification of SW, SAN, the son, Dr Waghorn and Dr Jooste.

19. The first question, which is fundamental because it goes to the court's jurisdiction, relates to SW's capacity or, as the son would have it, lack of capacity. According to the son, following a road traffic accident SW suffered a series of strokes in the 1990s which have left her, he says, with "a number of neurological deficits and cognitive difficulties which have remained." In relation to SW's alleged incapacity, he relies upon a letter from Dr SC, a consultant clinical neuropsychologist, dated 19 February 2002 and a letter from Dr RN, a consultant neuropsychologist, dated 10 August 2016.

20. Dr SC's letter, so far as material, reads as follows:

"To summarise the results of [SW's] Psychometric tests. She had an estimated IQ of 90 – an average IQ. The average IQ for the population is 100 and two thirds of the population have an IQ between 85 and 115. We estimate an IQ score so that when we assess current levels of intellectual function, we can see if there has been a drop in functioning or not. 

There had been a drop in functioning in [SW's] case. She had an IQ score of 78 when she was tested in the summer. She was particularly poor on tests of knowledge and reasoning.

Her memory scores were also poor when [SW] had to retain and recall verbal and visual information for about 30 minutes or more. She was also poor at organising material in attention. The average score for the population on the tests is 100 and [SW] was scoring between 60 and 70 on these tests."

21. Dr RN's letter, in material part, reads as follows:

"This seems a complicated situation. It seems, from the history provided by [W] and her son … that she had a thalamic stroke but the notes seem to make reference to some diagnostic uncertainty at the time. She presents as having cognitive difficulties and her ACE-III today was 76/100, which is significantly below the cut-off indicative of Dementia. I certainly do not think she presents as someone with Dementia but it gives an indication of the extent of the cognitive difficulties she is reporting. The difficulty is that it is hard to interpret the cognitive data without the neurological content being clearly defined. A thalamic stroke can result in persisting memory problems but equally other non-neurological variables might be important. I think it will be helpful to undertake some more detailed neuropsychological testing to try and get a clearer idea of her difficulties and have said I will arrange this within the next month or so.

Finally, the issue has been raised about capacity to consent and participate to Court proceedings. Unfortunately, I think this is a specific assessment that would need to be done by someone with specialist expertise in this area. I think it is going to be helpful to detail her neurology and/or neuropsychological / cognitive difficulties but, even if this process is successful, it will still not provide an answer as to her mental capacity to participate in Court proceedings. Since the Mental Capacity Act, (as I am sure you know!) assessment in mental capacity needs to be as specific as possible and needs to have its own specific assessment. I have explained my assessment could inform this process but have explained to them both today, I think they may eventually need to end up organising a specific assessment of mental capacity which is normally requested and organised by their solicitor."

22. In relation to Dr SC's report, it did not address directly the question of SW's capacity and it long pre-dated the Lasting Power of Attorney upon which the son relies as the basis for him making the present application. In relation to Dr RN's report, the son repeatedly insisted in front of me that the score of 76/100 was of itself sufficient to establish SW's incapacity, despite Dr RN's opinion that "I certainly do not think she presents as someone with Dementia" and his clear recognition that further expert evidence was required. The son furthermore insisted that any deficiency in the evidence would shortly be met, he having arranged for SW to be seen by a registered clinical psychologist, A. I have no reason to doubt A's competence and professionalism but I note that she is a psychologist, not, as more usually retained in such cases, a psychiatrist; more importantly, the documents the son showed me indicated that what was proposed was an assessment of SW's capacity to understand legal proceedings and capacity to litigate, whereas what I am concerned with is SW's capacity, as defined by sections 2 and 3 of the Mental Capacity Act 2005, in relation to a matter concerning SW's personal welfare.

23. In relation to this key jurisdictional issue, the material put before me is, as Ms Khalique submitted, wholly unsatisfactory, falling far short even of what would be required to meet the interim threshold under section 48 of the Act.

24. Quite apart from this fundamental jurisdictional problem in relation to SW's capacity or lack of capacity, the son's entire presentation of his application is hopelessly deficient. One hardly needs authority to make the point, though it may be convenient for this purpose to refer to In re Y (Mental Patient: Bone Marrow Donation) [1997] Fam 110, which, so far as I am aware, remains, twenty years on, the only remotely comparable reported decision, 2 but in a case such as this the Court of Protection would normally require proper evidence, including where appropriate expert evidence, on a number of topics, for example:

i) expert medical evidence as to the nature of the proposed procedure;

ii) details of the clinician(s) who will be carrying out the procedure (see PD9E, para 9);

iii) confirmation that the donee wishes the procedure to take place as proposed;

iv) if, as seems probable in the present case, the donor, though lacking capacity (if SW does), is nonetheless capable of expressing her wishes and feelings, details of those wishes and feelings (see section 4(6)(a) of the 2005 Act);

v) expert medical evidence as to the risks of the procedure for the donor (see Re Y, pages 115-116); and

vi) expert psychiatric or other evidence as to the 'benefits', if any, which the donor may derive from being a donor (see Re Y, pages 115, 116).

In the present case, evidence on all these matters is almost wholly lacking.

25. Quite apart from the issue of SW's capacity, there are three particularly striking features of this application:

i) First, there appears to have been, so far as I can see, and I pressed the son on this point, no discussion or consultation with SW about this application. I was told nothing about her wishes and feelings. What are they? More fundamentally, there seems to have been a wholesale failure to have regard to the fundamentally important principle in section 4(4) of the 2005 Act, requiring, "so far as reasonably practicable, [a decision-maker to] permit and encourage [SW] to participate, or to improve [her] ability to participate, as fully as possible in any act done for [her] and any decision affecting [her]."

ii) Secondly, there appears likewise to have been no discussion or consultation with SAN about his wishes – a particularly egregious omission given everything Newton J had said as recently as December 2014. All the son could say, in answer to my probing, was words to the effect that 'obviously he will agree because no-one wants to die.' Even as a general proposition this is not without its difficulties; in the present case it does not begin to address the obvious questions flowing from Newton J's findings. This omission is also very significant for another reason for, according to the son's skeleton argument, allogeneic bone marrow transplantation carries "a significant risk of mortality" for the donee.

iii) Thirdly, the application is put before me by the son explicitly on the basis that those with "clinical responsibility" for SW are two individuals who, although this was concealed from me, have in fact both been struck off the medical register, and that the relevant "treatment" is to be provided by one of these two struck off doctors. A prudent judge probably never says "never", but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E (and this is such treatment: see PD9E, para 6(b), following Re Y, pages 116-117) where the treatment is to be given by a doctor who has been struck off.

26. A curious observation at the very end of the son's skeleton argument, makes me wonder what, and who, are really driving this application. He is SW's son, and puts himself forward as making the application as her attorney, yet he says of the declaration he seeks:

"If granted, such a Declaration will enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas."

Is there some wider agenda at work here, and, if so, whose agenda is it?

27. Thus far, I have considered the matter without reference to the legislative scheme which is now in force. I start with section 33 of the Human Tissue Act 2004:

"(1) Subject to subsections (3) and (5), a person commits an offence if –

(a) he removes any transplantable material from the body of a living person intending that the material be used for the purpose of transplantation, and

(b) when he removes the material, he knows, or might reasonably be expected to know, that the person from whose body he removes the material is alive.

(2) Subject to subsections (3) and (5), a person commits an offence if –

(a) he uses for the purpose of transplantation any transplantable material which has come from the body of a living person, and

(b) when he does so, he knows, or might reasonably be expected to know, that the transplantable material has come from the body of a living person.

(3) The Secretary of State may by regulations provide that subsection (1) or (2) shall not apply in a case where –

(a) the Authority is satisfied –

(i)  that no reward has been or is to be given in contravention of section 32, and

(ii) that such other conditions as are specified in the regulations are satisfied, and

(b) such other requirements as are specified in the regulations are complied with.

(5) Where under subsection (3) an exception from subsection (1) or (2) is in force, a person does not commit an offence under that subsection if he reasonably believes that the exception applies.

(6) A person guilty of an offence under this section is liable on summary conviction –

(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 5 on the standard scale, or

(c) to both.

(7) In this section –

"reward" has the same meaning as in section 32;

"transplantable material" means material of a description specified by regulations made by the Secretary of State."

The Authority is the HTA.

28. The relevant regulations are The Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006, SI 2006/1659. The relevant provisions for present purposes are contained in paragraphs 10 and 11. Paragraph 10, so far as material, is in the following terms:

"(1)  Subject to paragraphs (2) and (3), for the purposes of section 33 of the Act (restriction on transplants involving a live donor), "transplantable material" means – 

(b) bone marrow, and

(c) peripheral blood stem cells,

where that material is removed from the body of a living person with the intention that it be transplanted into another person.
… 

(3)  The material referred to in paragraph (1)(b) and (c) is transplantable material for the purposes of section 33 of the Act only in a case where the person from whose body the material is removed is – 

(a) an adult who lacks the capacity, or

(b) a child who is not competent,

to consent to removal of the transplantable material."

29. Paragraph 11, so far as material, is in the following terms:

"(1)  Section 33(1) and (2) of the Act (offences relating to transplants involving a live donor) shall not apply in any case involving transplantable material from the body of a living person ("the donor") if the requirements of paragraphs (2) to (6) are met.

(2)  A registered medical practitioner who has clinical responsibility for the donor must have caused the matter to be referred to the Authority …

(3)  The Authority must be satisfied that – 

(a) no reward has been or is to be given in contravention of section 32 of the Act (prohibition of commercial dealings in human material for transplantation), and

(b) when the transplantable material is removed –

(i)  consent for its removal for the purpose of transplantation has been given, or

(ii) its removal for that purpose is otherwise lawful.

(4)  The Authority must take the report referred to in paragraph (6) into account in making its decision under paragraph (3).

(5)  The Authority shall give notice of its decision under paragraph (3) to – 

(a) the donor of the transplantable material or any person acting on his behalf,

(b) the person to whom it is proposed to transplant the transplantable material ("the recipient") or any person acting on his behalf, and

(c) the registered medical practitioner who caused the matter to be referred to the Authority under paragraph (2).

(6)  Subject to paragraph (7), one or more qualified persons must have conducted separate interviews with each of the following – 

(a) the donor,

(b) if different from the donor, the person giving consent, and

(c) the recipient,
and reported to the Authority on the matters specified in paragraphs (8) and (9).

(7)  Paragraph (6) does not apply in any case where the removal of the transplantable material for the purpose of transplantation is authorised by an order made in any legal proceedings before a court."

30. The effect of all this is that a criminal offence is committed (paragraph 10) whenever, for the purposes of transplantation, bone marrow is removed from an adult who lacks capacity to consent to the removal, unless (paragraph 11) the requirements of paragraphs 11(2) and 11(3) are met. It is important to note that, although the Court of Protection can supply the necessary consent (I use the words loosely) for the purpose of paragraph 11(3)(b)(ii), and although an appropriately framed order of the Court of Protection may obviate the need for compliance with paragraphs 11(4) and (6), the need for compliance with paragraphs 11(2) and 11(3)(b) cannot be overcome by any order of the Court of Protection: paragraph 11(7) by its express words applies only to paragraph 11(6) and not, for example, to paragraph 11(2). In other words, the involvement of a registered medical practitioner is essential if the commission of a criminal offence under section 33 of the 2004 Act is to be avoided.   

31. The son seems to recognise the problem presented by regulations 10 and 11, because, in his witness statement, he says:

"… Dr Waghorn may not apply for exemption from the Respondent under section [sic] 11(2) because he is not a registered medical practitioner.

The Applicant therefore applies for Declaratory Relief from the Court in assertion of Articles 2 and 8 of the Human Rights Act 1998."

This contention, whatever its basis, is manifestly misconceived. The Court of Protection has no jurisdiction, no power, to exempt anyone from the statutory scheme under the 2004 Act and the 2006 Regulations.

32. Standing back from the detail, there are three salient points to be noted:

i) The proposed transplant (assuming that SW lacks capacity, the premise of the application) cannot lawfully proceed without an application being made to the HTA.

ii) No such application has in fact been made. There is therefore no warrant for the son's allegation in his skeleton argument that the HTA has refused to consent.

iii) No such application can be made by Dr Waghorn or Dr Jooste because neither is a registered medical practitioner.

Therefore, as matters stand, the transplant being proposed cannot proceed, whatever the court may say or do. 

33. As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.

34. The application must be struck out.

35. There remain two other matters I have to decide.

36. The first relates to costs. The HTA seeks costs which it invites me summarily to assess in the sum of £7,671.

37. As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. In saying this I make clear that I attribute no responsibility at all to the son for the previous litigation; but his conduct of the present proceedings is of itself more than adequate justification for ordering him to pay the costs. The amounts claimed are, in my judgment, plainly reasonable, and he has not sought to challenge any of the individual items or amounts. He says that he is "at this present moment" unable to afford the costs, praying in aid the fact that the Jobseekers Allowance he was previously receiving terminated in January 2017. That may be, but inability to pay is not, of itself, any answer to an otherwise appropriate order for costs and, in all the circumstances, I see no reason why he should not be ordered to pay the costs, and in the amount claimed. Impecuniosity does not provide immunity from the normal consequences of forensic folly.

38. As against Dr Waghorn and Dr Jooste, the question is not quite so simple because they, of course, were not applicants in the proceedings. But, and it is a very significant but, they each sought to be joined as a party and expressed themselves as consenting to the application; without any challenge on their part, they were put forward by the son as having clinical responsibility for SW; as I have already described, they seemed throughout the hearing to be making common cause with the son; and Dr Waghorn himself sought relief from the court. In these circumstances, and having regard to the principles expounded in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2004] 1 WLR 2807, and Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17, to which Ms Khalique referred me, both Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs.

39. I shall, therefore, order the son, Dr Waghorn and Dr Jooste to pay the costs, summarily assessed, in the sum of £7,671.

40. The remaining matter relates to the reporting restriction order. There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour. I appreciate that the effect of naming Dr Waghorn may make it a matter of simplicity for anyone minded to do so to put names to both SW and SAN, but for reasons which will be all too apparent they also need to be protected, for example if there were to be any further attempt to embroil them in litigation. The balance is properly held, in my judgment, by varying the reporting restriction order so as to permit the naming of Dr Waghorn and Dr Jooste while continuing to forbid the naming of SW, SAN and the son.

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1 Subject to the defences in section 4(4), section 4(1) makes it a criminal offence to publish certain types of advertisement, as defined in section 4(8), relating to the treatment of cancer.

2 The decision of Holman J in The NHS Trust v A (a child) & Ors [2007] EWHC 1696 (Fam) related to a child who was the proposed donee of a bone marrow transplant.