Re RS (Best Interests: Surgery and Intensive Care) [2025] EWCOP 38 (T3) 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:
35. […] There is no conservative treatment that will help RS’s scoliosis. There is no safe way of offering 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.
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 finely 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 Official 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 finely balanced and the healthcare professionals who would provide the post-operative treatment are particularly anxious for confirmation from the Court that it will be in RS’s best interests.
The reference to ‘finely balanced’ was a reference to the guidance contained in Applications Relating to Medical Treatment, [2020] EWCOP 2, 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 finely 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.
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.
Poole J gave a very helpful explanation of his approach to the question of (in effect) the legitimacy of a judge making the decision as to whether the surgery should proceed:
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 finely 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 between available options, then the entire focus is on the individual’s interests.
38. The assessment of best interests includes, but is not limited to, consideration of the risks and benefits of proceeding with the planned treatment, and of not doing so. Evidence about risks and benefits requires careful consideration. Unavoidably, the evidence before the Court tends to focus on numerical assessments of risk and benefit, such as a 40% chance of a risk occurring, or a 5 year extension of life expectancy. In many cases, including the present case, such evidence has to be treated with caution. Predictions cannot be made with precision when they are based on very limited data. There are no large studies of 18 year olds having elective heavy sedation and mechanical ventilation for two to three weeks after corrective surgery for scoliosis. If not unique, the plan for RS is extremely unusual. The Court relies on expert and professional opinion evidence but in this case much of that evidence is based on personal experience.
39. Decision-makers have to look forward and so have to deal with uncertainty. It is a frequent mistake to believe that if something goes wrong after a decision then the decision must have been wrong. If a decision-maker choses option X over option Y because X has a 90% chance of success and Y has only a 50% chance of success, and X fails, it does not mean that they made the wrong choice. There is rarely a risk free option, and there certainly is not one for RS. Where there is risk, there is the possibility of a poor or even a fatal outcome, but risk is inevitable, in particular when the decision to be made is finely balanced.
40. When choosing to take a course of action that carries risk over a course of inaction, a decision-maker may feel personally responsible for every risk that then occurs. That may be especially so for clinicians and family members closely connected to the individual concerned. But they would have been equally responsible for the consequences of not acting. A decision-maker may feel a greater sense of responsibility for the consequences of a decision to act as opposed to a decision to do nothing, but for the person who suffers the consequences there is little difference.
41. Judges are not inherently better at assessing risks and benefits than those intimately concerned with a person’s care and treatment, including parents and medical professionals, but there are differences:
41.1. Judges have some distance from the person whose treatment is under consideration. Unlike those intimately involved with the individual’s care, judges will not have responsibility for carrying out the treatment, dealing with complications, or living with the direct consequences of the decision.
42.2. Judges can hear evidence from key witnesses, including independent experts, scrutinised by experienced Counsel, in a formal court setting to assist them to assess risks and benefits and to assess best interests.
42.3. Judges can take a neutral overview having taken into account the family’s perspective and the clinicians’ perspective.
43. It might be argued that some of these differences place judges at a disadvantage. Some would say that fundamental decisions about a person’s medical treatment should be made by those who know them best and who will be living with the consequences. However, the law requires that when disputed or finely balanced decisions regarding medical treatment of this kind are brought before the Court, it is the Judge who makes the decision as to what is in the person’s best interests, applying the principles and provisions of MCA 2005. Court procedures are designed to ensure fairness to all the parties involved. The process requires the judge to be objective. Responsibility for the decision is taken away from the family and the clinicians who may find objectivity difficult to achieve and is placed in the hands of the Judge. Precisely because the Judge is one step removed from the day to day care of the individual, they may find it easier to take a balanced overview than those with a particular, personal perspective.
In RS’s case, Poole J found that the benefits of proceeding outweighed the (significant) risks to RS, and that, taking into account all the circumstances, including the views of GH and others concerned with his welfare, it was in his best interests for the surgery to proceed. As he made a point of doing (for different reasons) in the recent case of KP, Poole J emphasised that the buck stopped with him:
51. The responsibility for this decision is now the Court’s. I was told that GH did not want to bear the weight of responsibility herself. She wanted all the clinicians to agree. That has not quite been achieved but she should know that whilst her evidence is of considerable assistance, the decision is not hers and the responsibility for the decision lies with the Court. Likewise, the treating clinicians, including those with doubts about the merits of the decision, can focus on giving RS the best possible care without worrying that they made the wrong call.
Conclusion
Reading this judgment was in some ways mildly surreal, as I did so under 24 hours after having recorded a conversation with Professor John Coggon about whether mental capacity law is law, in which we got quite deep into what judges are doing and why. Poole J’s observations almost read like he had been privy to that conversation. They also resonate with a longer-standing debate about whether there is ‘overreach’ by the law into medical decision-making, as well as a more recent one about whether and when it is sensible to approach the court to assist with clinical unease.
For my part, and whether or not it is conceived as a conventional role for a court, I have always found it to be hugely important, and helpful, for judges to be able to hold risks that – for whatever reasons – are ones that cannot be held by those involved in the person’s care. Such can be necessary in a case like RS’s, where the desire was act, but in a situation where there were inherent risks in acting. It can also be necessary in a case such as that Re RC, where those involved considered that not acting was the ethically right thing to do, but were legitimately concerned at the risk to them of the consequences of doing so). Poole J’s judgment provides a clear measure of reassurance that he, at least, is someone who is willing and able to bear the weight of risks on his shoulders.
