A NHS Foundation Trust v MC [2020] EWCOP 33

What Happened

MC was an 18 year old with undisclosed learning and language difficulties. The case came to the Court of Protection because an NHS trust sought consent to harvest her peripheral blood stem cells, so they could be donated to her mother who had chronic leukaemia.

This was the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity had come before the CoP, and the first time the Human Tissue Authority (“HTA”) had been involved in a case of this nature. 

It was agreed by all parties that MC lacked capacity to give informed consent for the collection of stem cells and their use. Therefore, Mr Justice Cohenhad to consider whether it was in MC’s best interests for her stem cells to be harvested for the benefit of her mother; and whether the court should consent to the procedure.

Mr Justice Cohen concluded that it was “overwhelmingly in MC’s best interests to participate in the proposed programme and donate her stem cells for the benefit of her mother. It is in MC’s best interests as much her mother’s.”

In reaching this conclusion, he had to consider the risks and the benefits of the procedure.

Mr Justice Cohen highlighted that the procedure would not be risk free. It would require hospital visits, and the course of action could have possible side effects for example flu-like symptoms, or risk of infection.

He also had to consider that the procedure had no physical benefit for MC herself. In his consideration he referenced Connell J in Re Y (Mental Patient: bone marrow donation) [1997] Fam 110:

“The taking of blood tests and the harvesting of bone marrow from the defendant, who is incapable of giving informed consent, would amount to assaults upon the defendant and would therefore be illegal unless shown to be in the best interests of the defendant and therefore lawful. The test to be applied in a case such as this is to ask whether the evidence shows that it is in the best interests of the defendant for such procedures to take place. The fact that such a process would obviously benefit the plaintiff is not relevant unless, as a result of the defendant helping the plaintiff in that way, the best interests of the defendant are served.”

He then also referenced Morgan J in Re G (TJ) [2010] EWHC 3005 (COP):

“The word “interest” in the best interests test does not confine the court to considering the self-interest of P. The actual wishes of P, which are altruistic and not in any way, directly or indirectly self-interested, can be a relevant factor.”

However, Mr Justice Cohen went on to state that it was very clear that MC had a very loving relationship with her parents, with whom she lived, and without a stem cell transplant, MC’s mother was not expected to live for more than a year. There were clear benefits, emotional, social and psychological, to MC, of her mother’s life being extended.

MC was the only family member who was a match, and therefore able to provide stem cells.

It was highlighted that although MC could not understand the details, she understood that her mother was not well and that she may have ability to extend her mother’s life and perhaps enable her to recover. It was shown that MC wanted to do that – it had been her repeated wish expressed to the doctors and to the Official Solicitor that she wanted to give what help she could.

These benefits outweighed the risks, to enable CoP to consent to MC donating her stem cells to aid her mother.

Wider Context

Although in this case, it was in MC’s best interests to participate in the procedure, Mr Justice Cohen took time to consider the case in a wider context.

He stated that there were about 65 individuals each year under the age of 18 for whom the HTA gives approval for this sort of procedure. It was not known how many of those had difficulties with capacity, like MC. MC’s case came before the court because she was an adult, where there was no Lasting Power of Attorney or a Court Appointed Deputy who could give consent.

He stated that;

“For others under the age of 18 there is, or was felt to be, something of a vacuum. On analysis that vacuum has been partially but not completely filled. The treating Trust holds no duty of care to the donor because its obligations are to its patient, the donee who will be the recipient of the stem cells. The HTA will check only to see if there is consent and no monetary payment (which is forbidden) or other pressure or coercion applied.

Nowhere is there at the centre of what is being considered either by the treating Trust or the Human Tissue Authority, the best interests of the donor…

I go no further than to say that there really should be a considered risk and benefit analysis by the accredited assessor. I am not criticising the accredited assessor in any way. This is the first application to be considered since the Mental Capacity Act 2005 came into operation. However, it could only be beneficial if a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 was performed in each case where the HTA is faced with an issue of capacity of the donee.”

The full report can be found here