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Court of Protection Update (Autumn 2016): Part 1

In the first part of their Court of Protection Update, Sally Bradley and Julia Townend, barristers of 4 Paper Buildings, focus on recent important judgments concerning deprivation of liberty and capacity.

Sally Bradley, barrister, 4 Paper BuildingsJulia Townend, barrister, 4 Paper Buildings

Sally Bradley and Julia Townend, barristers, 4 Paper Buildings 

In this update we provide a brief summary of some (not all) of the important Court of Protection cases from this year.

Due to the volume of interesting decisions, we have divided this update into two parts. The collective contents of the updates are:

1) Authorising Deprivation of Liberty;

2) Capacity/Best Interests Decisions;

3) Reporting Restriction Orders;

4) Costs and Civil Restraint;

5) Participation of P in Proceedings.

The first two topics shall be dealt with in this update.

1) Authorising Deprivation of Liberty

North Yorkshire County Council & Another v MAG & Another [2016] EWCOP 5-1

The facts
MAG, the subject of proceedings, was aged 35 years and suffered from autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. Since 2006 MAG lived in a flat with a care package, funded by the local authority and A Clinical Commissioning Group. The flat was too small to accommodate use of a wheelchair (MAG moved around the flat on his bottom and using his hands and knees, which had resulted in bursitis and calluses on his knees and ankles) and there was no scope for sleeping night staff. MAG was able to access the community daily with assistance, but there was no outside space at the property. Since 2013 the local authority had been looking for alternative accommodation for MAG which would, inter alia, have passages wide enough to enable use of a wheelchair indoors.

The appeal
In 2011 the local authority issued proceedings in the Court of Protection, seeking declarations that MAG lacked capacity to decide where he should reside, enter into a tenancy agreement and make decisions about his care needs such that it was in his best interests to be deprived of his liberty. There had been no dispute that MAG lacked capacity to conduct the proceedings and make the decisions in question and final declarations to this effect were made in 2013.

The key issue was MAG's deprivation of liberty, as a result of his residence and care package. An interim order authorising MAG's deprivation of liberty had been granted on 23 November 2011 and continued until 13 July 2015. The final hearing before DJ Glentworth took place on 6 March 2015 and judgment was handed down on 13 July 2015. She concluded that she could not authorise the deprivation of MAG's liberty on the basis that nothing else was available, and was not satisfied that the local authority had taken the steps necessary to ensure there was no breach of its obligations. The local authority's applications for a stay of the order and for interim authorisation for the deprivation of MAG's liberty were refused.

The local authority and A Clinical Commissioning Group sought permission to appeal against the decision of DJ Glentworth, and their grounds are set out at paragraphs 15 to 19 of Cobb J's judgment.

In December 2015, following the first instance decision and prior to the appeal, an appropriate property was identified for MAG. Cobb J held that the appeal was not rendered academic, because the lawfulness of the restriction of MAG's liberty from July to December 2015 required adjudication. He allowed the appeal and made an order authorising the deprivation of MAG's liberty. 

The substance of the decision
Cobb J concluded that the first instance decision was "unsupportable, and wrong". He picked six key themes from the arguments to address in the course of his judgment. His conclusions are:

1. In asking herself the questions which the District Judge did (paragraph 11 of Cobb J's judgment), she was sent off course. All substantive decisions in the Court of Protection are governed by the best interests tests. The appropriate considerations were:

"i) Whether it is in MAG's best interest to live at the property, noting that although he is deprived of his liberty, there is no alternative available which offers a lesser degree of restriction;

ii) Whether the accommodation provided to MAG was so unsuitable as to be unlawfully so provided, breaching MAG's rights under the ECHR (notably Article 5)."

Cobb J believed that the first question would have been answered in the affirmative and the second in the negative (commenting in relation to the second question that "context is everything"), likely resulting in the granting of the authorisation.

2. As to the effect of ACCG and another v MN and others [2013] EWHC 3859 (COP), a decision which was to be handed down shortly following the hearing at first instance such that the first instance judgment in this case awaited the same, Cobb J held that DJ Glentworth's reasoning was unconvincing when she sought to distinguish between welfare decisions (as in Re MN) and decisions involving deprivation of liberty, as here.

3. Cobb J concluded that the court was not bound to refuse the authorisation of the deprivation of liberty for breach of Article 5 reasons:

"i) Article 5 is concerned with the reason for the detention, not the conditions of it…;

ii) The "overarching purpose of Article 5 is to protect the individual from arbitrariness" (Idira [50]); there is no case made out here that the deprivation of liberty was 'arbitrary';

iii) To comply with the obligations imposed under Article 5, all that is required is that the conditions are appropriate, not that they are the most appropriate for the detained person (Idira at [49]);

iv) Insofar as the judgment does address characteristics of the home which (the judge concluded) are less than satisfactory, a proper and balanced determination of the issue would have brought into the reckoning (a) many of the positive attributes of the accommodation (not properly addressed in the judgment), and (b) the likely "devastation" (per oral evidence of Ms MT) which MAG would experience in moving "because … [he] has never been so settled, so happy, so confident as what he has been (sic.) since residing at [the property]";

v) In this case the judge did not explicitly find any breach of Article 5; there is no finding of "serious inappropriateness" (per Idira) of the home or the care package.  The furthest the judge went was to conclude that the deprivation of liberty had an "overly restrictive intensity" (§37, read with §39) and that the "care regime … risks breaching MAG's right to liberty" (§41) (my emphasis by underlining).  Deprivation of liberty is a binary concept; either a person is, or is not, deprived of liberty; the judge's reference to 'overly restrictive intensity' suggests that she considered that there may be 'shades' of deprivation of liberty.  In any event, no party questioned that the care regime interferes with MAG's right to liberty, nor did anyone seriously contend that deprivation of liberty was otherwise than in his best interests given his multiple needs (see Lady Hale in Cheshire West at [34]: "they may well be a good deal happier and better looked after if they are" deprived of their liberty);

vi) The judge had, on the same evidence, granted interim authorisations of deprivation of liberty of MAG at his home for more than three and a half years;

vii) In my judgment, the 'place and conditions of detention' would have to be different or of a significantly different character than were found to be here to warrant consideration under Article 5; a "high threshold" needs to be crossed, and breach would only be satisfied if there was a finding that the place and conditions were "seriously inappropriate" (Idira at [52])."

4. In relation to taking a decision which MAG could not take for himself, Cobb J held that DJ Glentworth was wrong to direct that the local authority "must take the steps necessary to ensure that there is no breach" of statute. He reiterated that the Court of Protection is confined to choosing between available options. MAG may have had public law remedies elsewhere.

5. As to whether there was no alternative option, the first instance judge recognised the current property was all that was on offer. Cobb J held that in refusing to authorise the deprivation of MAG's liberty at this property, she was looking beyond the options which were available. This "wholly unjustified pressure" on the local authority would have required MAG to move forthwith from his accommodation of 9 years which would be wholly against expert evidence before the court that a move should be effected slowly and carefully. The first instance judge placed the local authority under "impermissible pressure" as deprecated in Re MN.

6. Cobb J found that the findings made by the District Judge did not materially or directly affect the issue of deprivation of MAG's liberty. They were unfair and unsupportable for three reasons:

"i) [The judge] rightly steered herself (and counsel) from such a historical review due to lack of court time…; [the local authority] could reasonably assume that this issue was no longer 'on the table';

ii) There was no proper pleading of the case which [the local authority] had to meet…; and

iii) In reaching her findings, the judge did not obviously conduct the sort of balanced and rigorous analysis that one would expect to see: there is no critical evaluation of the evidence as a whole, or (specifically) of the reports of [experts]…"

Further, Cobb J rejected an argument advanced by the Official Solicitor that MAG's living circumstances risked violation of his rights under Article 3 ECHR. To raise this was "inflammatory and unhelpful".

Mention was made of the unfortunately prolonged proceedings. Cobb J reiterated previous comparisons to the six month time limit in public law children proceedings, and highlighted the urgent need for similar case management in the Court of Protection.

Birmingham City Council v D & Another [2016] EWCOP 8

The facts
D, aged 16, had diagnoses of ADHD, Asperger's Syndrome, Tourette's Syndrome and suffered from a mild learning disability. D was assessed not to be Gillick competent for the purpose of providing consent to his residence and care arrangement or to any deprivation of liberty.

For some time he had been living in Hospital B where he received education. The accommodation involved restrictions.

Following a decision that D was fit to be discharged from Hospital B, in June 2015 he moved to Placement B, specifically House A therein, with three other young people. D was under constant supervision and control in the placement, with all external doors locked and no permission for D to leave the premises unless supervised for a planned activity. His parents consented to it pursuant to section 20 CA 1989.

The application
The local authority issued an application, submitting that D was not deprived of his liberty at Placement B. Of the three limbs specified by Storck v Germany [2006] 43 EHRR 6 (the objective limb of a person's confinement to a certain limited place for a not negligible length of time; the subjective limb that the person has not validly consented to the confinement; and that the confinement must be imputable to the State) the local authority concededthat the objective Limb One of was satisfied, but that Limbs Two and Three were not. The local authority relied on D's parents' potential consent to the confinement, and that D's accommodation was voluntary pursuant to section 20 CA 1989.

The Official Solicitor, litigation friend for D, submitted that no parent in any circumstances may consent to the confinement of their child, whatever their age (and alternatively there is an important distinction to be drawn between children under the age of 15 and young people aged 16-17), and that D's circumstances were plainly and clearly imputable to the state via the acts of the local authority.

The substantive decision
This decision followed from Trust A v X and A Local Authority [2015] EWHC 922 (Fam) in which Keehan J concluded that D was not deprived of his liberty when living at Hospital B. Keehan J was not persuaded that this decision was wrong (despite the Official Solicitor's submission). However in this subsequent decision Keehan J suggested that a more appropriate wording for the first sentence of paragraph 52 of the previous judgment would be that he is wholly satisfied that D lives in conditions "which satisfy the First Limb of the Storck test" rather than "which amount to a deprivation of his liberty".

Keehan J highlighted that it is vitally important to remember the implications for a child of a finding that they are not deprived of their liberty.

After a thorough consideration of the law, Keehan J determined that a parent of an incapacitous 16 year old (in this case D) may not consent to their confinement, which would otherwise amount to a deprivation of liberty absent a valid consent. He declined to give general guidance on the issue of depriving a young person's liberty. It was held that:

Staffordshire County Council v SRK & Another [2016] EWCOP 27

The facts
SRK, currently in his late thirties, was severely injured in a road traffic accident. His serious injuries were such that he lacks capacity to make decisions on his regime of care, treatment and support. The care regime of SRK creates, on an objective assessment, a deprivation of liberty. SRK was awarded substantial damages, paid to his property and affairs deputy, used to purchase a property adapted for him (in which he lives) and used to fund a regime of 24/7 care from private sector providers.

The application
The local authority applied to the Court of Protection for a welfare order authorising SRK's deprivation of liberty.

All parties accepted that of the three necessary components for deprivation of liberty specified in Storck v Germany [2005] ECHR 406, the first component was made out in that there was an objective component of confinement in a particular restricted place for a not negligible length of time. It was also agreed that the second, subjective, component was made out by lack of valid consent. The issue was whether there was attribution of responsibility to the state to make out the third and final component. The parties submitted that there was, but the Secretary of State for Justice (joined as a party) argued that this third component was not satisfied in relation to SRK.  A further argument was advanced on behalf of SRK's litigation friend, his sister, that the MCA 2005 does not require satisfaction of the third component.

The substantive decision
Charles J determined that an order of the Court of Protection would be required in these circumstances. Referring to Cheshire West [2014] UKSC 19 and Storck v Germany [2005] ECHR 406, he held that that if the state knows or ought to know of the situation on the ground, a welfare order would be required to avoid violation of Article 5 ECHR. As to the state's knowledge in this particular case, Charles J took the view that the steps taken by the local authority in this case did not amount to direct involvement, making the state responsible for the private deprivation of liberty. However, the award of damages to SRK by the court, and the appointment of a Property and Affairs Deputy in the Court of Protection, that Trustees or an Attorney had to make decisions on the application of funds in SRK's best interests, provided ample evidence that the state had some knowledge of the situation. The component of state responsibility would be satisfied in all similar cases. In such cases, the Deputy or other Trustee should take steps to ensure the relevant local authority is aware of the care regime and that if the least restrictive regime creates a deprivation of liberty, a welfare order is sought from the Court of Protection.

Charles J did not feel that there was a less restrictive option and SRK's current arrangements were said to be in his best interests and should continue. As such the deprivation of liberty was authorised.

As to the argument advanced by SRK's litigation friend that the definition of deprivation of liberty in sections 64(5) and (6) MCA 2005 is such that it refers only to the objective and subjective components of a deprivation of liberty (first and second components), such that there was no requirement to satisfy the third component of imputability to the state. Charles J clarified that MCA 2005 references to a deprivation of liberty do in fact mean a deprivation of liberty in the Article 5 ECHR sense.

2) Capacity/Best Interest Decisions

Re Z & Others [2016] EWCOP 4

The facts
Z, a young woman aged 20, lived at home with her mother but aspired to live independently. She was diagnosed with Aspergers Syndrome and was on the autistic spectrum, with borderline learning disability. Her adolescence was said to have involved her appearance on a television talent competition which left Z embarrassed and humiliated (resulting in her dropping out of school and becoming depressed), risky behaviour and sexual exploitation of Z, including via social media.

The application
The local authority issued proceedings in the Court of Protection seeking declarations as to Z's capacity to choose her residence, make contacts with others, deal with her care and litigate in the proceedings. There was a further issue about whether Z had capacity to consent to sexual relations.

The decision
Interim declarations as to Z's lack of capacity to make decisions about contact, and care, had already been made.

There had been a delay of 18 months from issue to this capacity hearing, something which concerned Cobb J.

Cobb J was required to decide whether risks taken by Z represented 'unwise' decision-making or evidenced her lack of capacity. Helpfully, he summarised the applicable principles for determinations of capacity.

Dr Rippon, Consultant Developmental Psychiatrist, had met with and assessed Z. Unfortunately her reports were a year or so out of date. She met Z shortly before the hearing and updated her opinion by email and also provided oral evidence. Her conclusion (see paragraph 52) was that this was an "incredibly difficult case" and that at times she had "questioned whether it is a lack of wisdom or lack of capacity; it is not clear-cut and straightforward".

The final ten or so paragraphs of Cobb J's judgment set out his analysis. Z's impairment of the mind for the purposes of MCA 2005 was not in dispute and the issue related to the functional element of the test. Cobb J emphasised the need for an inability to process information relevant to risk at the material time, as opposed to an impairment, to reach a decision that Z was incapacitous in relation to the matters in dispute. This test for the rebuttal of the presumption of capacity was not met.

Cobb J diverged from Dr Rippon's opinion (reiterating that she advised, and the court decides). His specific conclusions as to Z's capacity to make various decisions were as follows:

Re CS (Termination of Pregnancy) [2016] EWCOP 10

The facts
CS, a mother of two, was viciously attacked by her partner (father of the youngest child) in December 2015, resulting in serious head injuries (including serious head injuries, comprising fractures, intracranial bleeding and brain damage). A few days beforehand she had informed others that she was pregnant, including her sister, but wished to have an abortion. During her hospitalisation following the attack, CS presented with significant behavioural changes and was diagnosed with post-traumatic amnesia. There was no clear prognosis about her recovery.

The application
An NHS trust applied for an order that CS lacked capacity prescribing that it would be in CS's best interests to undergo surgery to terminate her current pregnancy. The application was made on an urgent basis because the time during which a surgical termination of pregnancy could be carried out would expire one week later, and any subsequent medical termination would require CS's cooperation (which could not be guaranteed).

The substantive judgment
Baker J determined that:

1. CS lacked capacity to consent to medical treatment (particularly a termination, general anaesthetic and other ancillary treatment).

Baker J rehearsed the principles and statutory provisions applicable to a determination of capacity. He reminded himself that if the person's capacity is likely to improve in the foreseeable future, those who are making a decision should wait until it has done so if that course is practical and appropriate, but noted the urgency in this case. He held that the diagnostic test was plainly satisfied, and as to the functional test, the evidence of the psychiatrist was that CS appeared to find it difficult to understand and retain information generally, including on the issue in question.

2. It would be lawful and in the best interests of CS to undergo termination of the pregnancy by surgical means (potentially requiring general anaesthetic and ancillary treatment).

In determining CS's best interests, Baker J reminded himself of Re X [2014] EWHC 1871 (Fam) in which Munby P held that in a matter as personal and sensitive as a termination, considerable weight should be attached to the wishes and feelings of a mother, albeit one who lacks capacity.

With the clear evidence that CS had expressed an intention prior to the assault to terminate her pregnancy, beginning to take steps to arrange an appointment, Baker J held that the evidence was "overwhelming and all in one way" (paragraph 18), relying on the evidence of CS's mother and sister and that CS had previously had a termination and had experienced the consequences of the procedure. As to CS's current wishes, they were hard to ascertain, uncertain and contradictory (CS's suggestion she wanted to keep the baby may refer to her 12 month old child).

Her clear unambiguous position prior to the assault were crucial and should be afforded greater weight.

A termination was in the best interests of CS in that pregnancy might place her health at further risk (her propensity to fall over). A termination was more likely to promote her physical recovery and rehabilitation.

3. The NHS Trust must file and serve on the Official Solicitor a further short plan setting out how the administration of general anaesthetic would be dealt with if CS was to become distressed and agitated such that restraint became necessary.  Baker J declared it to be lawful for the NHS Trust to use proportionate force in restraining CS to administer the general anaesthetic if required.

W (Medical Treatment – Anorexia) [2016] EWCOP 13

The facts
W, aged 28, had suffered from a severe and enduring eating disorder for 20 years with other physical, social and psychological consequences. Aged 7 she was diagnosed with OCD, aged 10 she was diagnosed with anorexia nervosa. Since the age of 11 years she had six lengthy admissions for inpatient treatment (amounting to almost 9 years). At the time of the application, W had been admitted for 2 ½ years and weighed less than 30kg with a BMI of 12.6.

The application
Following a further reduction in the weight of W, the Health Board made an urgent application for:

1. W to be re-fed under sedation. This would involve her being fed by tube whilst rendered unconscious for up to six months (albeit by the time of the hearing this was not pursued on ethical and practical grounds); or

2. An immediate discharge of W to her parents' home with a full community support programme on the basis that her condition was not treatable and W remaining on an acute ward was no longer appropriate.

The substantive decision
Jackson J referred to his summary of the law in Re E (Medical Treatment: Anorexia) (Rev 1) [2012] EWCOP 1639.

In this case, the unanimous professional view, accepted by Jackson J, was that a discharge of W to the community, with a carefully considered package of support for W and her family, was the "least worst option" (paragraph 48). He reached the conclusion that "After all that has happened, it now has to be accepted that it is beyond the power of doctors or family members, and certainly beyond the power of the court, to bring about an improvement in W's circumstances or an extension of her life" (paragraph 48). It was stressed that this was not a situation where necessary services were being withdrawn from W, but the present treatment was not beneficial so it was not right that it should continue.

Jackson J accepted that by reason of her severe anorexia, W lacked the capacity to make decisions about the care and treatment of her condition (although she did have capacity to make other decisions, including decisions about her physical health). The plan of the Health Board was approved (on the basis there was no realistic alternative) such that insofar as the circumstances currently existed or continued to exist, W would not be readmitted to the unit. W would be discharged into the community with a closely thought-out package of support for her and her family. If significant time passed, with signs that W's thinking and behaviour had changed, the Health Board would reassess the situation.

Re O (Withdrawal of Medical Treatment) [2016] EWCOP 24

The facts
O, who was aged 58 years, suffered a cardiac arrest and severe brain injury from which she did not awake. O was fed via a PEG tube. After a month she was able to breathe without the assistance of a ventilator. A year later O suffered a second cardiac arrest which rendered her dependent on ventilation again. Medical professionals agreed that O had suffered severe and irreversible global cerebral cortical damage, and that her situation following the second heart attack was markedly different to that following the first heart attack, the brain and brain stem having been substantially damaged.

The application
The NHS Trust applied to the Court of Protection seeking a declaration that it might lawfully withdraw and withhold mechanical ventilation and any escalation of treatment (e.g. cardiopulmonary resuscitation, organ support, antibiotics). They did so on the basis that such treatment was no longer in O's best interests.

The Official Solicitor in turn successfully applied for the instruction of a well-known Consultant Neurologist. His report largely concurred with the treating clinicians' opinion.

Following the desperate commitment of O's family, namely her three daughters, Hayden J authorised the instruction of a further expert with a view to striking the balance between compromising her rights and offering the family every conceivable opportunity to explore the options for O. He also hoped that if hope was truly exhausted, the family would work with the doctors and hospital staff to make dignified and peaceful arrangements for ventilation to be withdrawn. The expert came to the conclusion that the other doctors who had examined O were correct in their assessment, concluding that there was "no possibility of significant improvement in cerebral function" and as to O's breathing "she might be able to breath perhaps slightly better than she does now, but her ability to breath will always remain so fragile that she will need to remain on some sort of ventilation for the rest of her life".

The substantive decision
Hayden J granted declaratory relief sought by the NHS Trust to withdraw artificial ventilation from O. He went further than the conclusions of the expert instructed per the family's request, and considered that it would be "inimical to O's welfare to sustain her artificially" (paragraph 14). As part of his judgment he considered paragraph 28 of MCA Code of Practice and In re J (Wardship: Medical Treatment) CA [1991] Fam 33 and the principle that the court must not pursue respect for life to the point that it becomes empty of real content or where the principle eclipses the patient's right to simple respect for her dignity.

Cambridge University Hospitals NHS Trust v BF [2016] EWCOP 26

The facts
BF, a 36 year old, was diagnosed with paranoid schizophrenia in 2006 following her longstanding abuse of drugs. Her treatment included regular depot injections of Clopixol (anti-psychotic drug). At the time of the application BF was detained in a mental health unit pursuant to section 3 MHA 1983.

In February 2016 BF was found to be suffering from extensive ascites and a CT scan revealed a mass which was assessed as showing the appearance of stage IIIB ovarian cancer. Blood tests were consistent with an ovarian tumour. The Lead Cynaecological Oncologist opined that BF required surgery, including a total abdominal hysterectomy which would result in the loss of her fertility. This was against a backdrop that post-surgery histopathology results may indicate that the tumour was not cancerous.
BF stated that she wanted to get pregnant, but did not have a partner. On 31 March 2016 BF signed a consent form to the surgery proposed, a view having been taken that BF had capacity so to consent. The surgery did not take place due to difficulties in the medics gaining venous access and associated stress to BF. BF suffered a psychotic episode and refused surgery. A further surgery date was planned, but ultimately she was held not to have capacity to consent.

The application
The NHS Trust sought declarations under MCA 2005 that:

1. BF lacked capacity to consent to or refuse medical treatment (particularly the medical treatment proposed); and

2. It was lawful, and in the best interests of BF, to undergo total abdominal hysterectomy with bilateral salpingo-oopherectomy and omentectomy and bowel resection and colostomy, general anaesthetic, sedation and further ancillary treatment.

The substantive decision
MacDonald J concluded that BF lacked capacity to make decisions in relation to the proposed medical treatment. In turn he determined that it was in BF's best interests to undergo the surgery proposed. The decision was reached on the following basis:

1. The medical evidence was accepted. It was more likely than not (the likelihood being higher than 80%) that the tumour was a stage IIIB malignant ovarian cancer which had spread to the omentum. Without treatment BF's disease may progress to the point where she would become ineligible for surgery and without the same would survive for perhaps six months.

2. BF's paranoid schizophrenia satisfied the diagnostic element of the test for capacity. Her florid psychosis stemming from the same rendered her unable to understand, use or weigh relevant information to the decision in issue. Her diagnosis led her to doubt that she had a tumour, believing instead the scans were false. MacDonald J was not satisfied that BF would not, even with further treatment, regain capacity within the necessary timescale during which the decision needed to be made.

Notably he was clear that a diagnosis of schizophrenia will not lead inevitably to a conclusion that a person lacks capacity to make a given decision.

Extensive reference was made to his earlier decision in Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80.

3. In determining whether surgery was in BF's best interests, MacDonald J considered that the fundamental importance of the sanctity of life should be adhered to when consistent with the subject's best interests, and particularly:

a. At a time when she was considered to have capacity, BF consented to the proposed surgery, thus convincing the court that she would wish to prioritise potentially life-saving treatment or continued life over the opportunity to bear children.

b. In considering BF's expression of desire to have children, this was weighed against the consequences of the absence of surgery which would likely lead to BF's premature death within six months. If treated, BF might be cured of ovarian cancer, or her life expectancy would increase to three to five years. It was likely that if the hysterectomy was not to take place, BF would die prior to the expiration of the period required for her to carry a baby to term. 

c. The risks of the proposed operation were borne in mind, including the small chance that BF would have to live with a colostomy, and that post-surgery histopathology would show the hysterectomy was performed on a non-malignant mass.

d. BF's parents (who were close to her and responsible for her care), supported the proposed surgery for BF.

At paragraph 72 a postscript to the judgment is provided which sets out the outcome of surgery. Testing undertaken during the operation indicated a benign or borderline tumour with no evidence of macroscopic residual disease. Ultimately, the steps taken were such that the surgeon was able to preserve BF's ability to have children in the future.