Powys Teaching Health Board & Anor v NT & Anor [2025] EWCOP 44 (T3), bluntly, illustrates why those with mental health conditions so often die entirely avoidable deaths. NT, a 41 year old man, had a long-standing mental condition, and was detained under the MHA 1983. In March 2025, it had been recognised that he needed an operation to explore and remove what was thought to be a potentially life-threatening tumour from his bladder through a procedure known as transurethral resection of a bladder tumour (‘TURBT’). At that point, an assessment of his capacity to decide upon the TURBT was carried out described by Theis J in these terms:
7. The capacity assessment in late March 2025 by Dr J stated ‘Today [NT] is capacitated and agreed to have surgical intervention. He needs reassurance from staff he connects with at [Z home]. He might appear lacking capacity sometimes because of extreme anxiety and failure to communicate with staff that he does not know, and then resorts to denial and distortion of reality’. That assessment was superficial, contained no analysis of the history of NT refusing the treatment in the past and did not obviously address the reasonable foreseeable consequences (as required by s3(4) Mental Capacity Act 2005) other than recording ‘the procedure and its purpose was explained to him’. It did not accord with the court’s expectation that a capacity assessment should be “evidence-based, person-centred, criteria-focussed and non-judgmental” per CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3), para. 60(4).
Pausing there: had NT accepted the TURBT at that point, no one would likely to be wiser as to the quality of the assessment even if, in fact, as it turned out, his ‘consent’ would have been incapacitous ‘assent.’ However, NT declined the treatment three times over the next four months. His capacity was, however, not looked at again until August 2025, at which point a further assessment concluded that he lacked the relevant decision-making capacity. The Trust concluded in August 2025 that an application should be made to court to authorise the surgery; it was not, however, filed until October 2025, and was not then determined until December 2025.
Theis J was understandably concerned about the delay, and made the following observations:
9. The Health Boards state that NT’s medication was adjusted soon after the best interests meeting and there was understandable concern about the impact on NT’s therapeutic relationship with those who cared for him if the procedure was undertaken against his wishes. However, some of the delay was said to be due to what were termed ‘structural issues’ caused by the need for liaison between the different Health Boards and providers. These structural issues should be addressed without delay to ensure that is not a cause of delay in the future.
10. The ‘Guidelines for Managing Patients on the Suspected Cancer Pathway’ published by the Welsh Government emphasise the need for clinicians to ensure that ‘their actions promote the principle of patients waiting the shortest possible clinically appropriate time for treatment.'(paragraph 27)NT had a condition that required the proposed treatment and the impact of delay risked the condition becoming more serious. Steps should be taken to ensure that such delays are avoided in other cases with a clear timetable agreed at the best interests meeting in the event of decision for proposed treatment as to when (if it is required) an application in the Court of Protection is made.
Ultimately:
11. There is now a large measure of agreement between the parties that the court should make the order for the proposed treatment. In recent discussions with NT he requested a further scan was done through a private hospital, indicating that if that scan still showed the presence of the tumour he would agree to undergo the TURBT. That further scan was arranged, funded by a member of NT’s wider family. The results became known on 21 November 2025 and confirmed the existence of the tumour. In discussions with his mother over the weekend before this hearing NT told her that in the light of that scan result he would agree to undergo the procedure.
Theis J had little hesitation in concluding both that NT lacked capacity, and that it was in his best interests for the TURBT to proceed:
60. In undertaking the best interests assessment the court has the recent evidence regarding NT’s wishes and feelings as well as the views of his mother. The medical evidence regarding the need for the TURBT procedure is unchallenged although it is recognised that there is a need for clear communication for NT by those around him regarding the procedure and any post operative treatment. Such consistency in communication is likely to reduce NT’s anxiety which in turn will support him regarding his wishes and feelings about the procedure and any treatment proposed.
61. The court recognises the concern that had been expressed about the impact on NT’s therapeutic relationship with those who care for him at Z home if the procedure took place against NT’s wishes. That risk has now reduced with the change in NT’s views although bearing in mind the history there is a risk NT’s views may change. From the evidence the court shares [the confidence of NT’s mother] that would be managed by the team at Z home in a way that will minimise the risk to those important relationships being adversely impacted
Comment
In addition to Theis J’s observations about delay, it is perhaps also worth recalling those of Cobb J (as he then was) in Re PG, another case involving a person with a mental health condition where suspected cancer required investigation:
55. It may well be that the delay in the making of the application has arisen from a lack of communication between the two Applicants; this was hinted at by Dr. H. It may be that it flowed from an understandable concern by the Applicants that it would be inappropriate to trouble the court with an inchoate application in the absence of an agreed “fully-worked up” care plan, in respect of the investigations. If so, I would wish to encourage these Applicants and/or any other applicant in such circumstances with such a case, to be less concerned about ensuring that every ‘i’ is dotted and every ‘t’ crossed before making the application where speed of decision-making may be of the essence: perfect in this instance may well be the enemy of the good. Once it became apparent that NHS Guidance regarding the investigation and/or treatment of PG’s condition could not be complied with timeously, and/or where it was clear that PG’s treating/receiving clinicians could not agree upon a care plan to facilitate the investigations and/or treatment, the application could or should have been issued. The Court could then have ensured with the assistance of counsel and solicitors that evidence was filed from the necessary factual and expert witnesses to enable the detail of the care plan to be completed, and a decision to be reached promptly in respect of PG’s best interests.
NT’s case was, probably, a case which required a court application – ‘probably’ because the fact that when NT’s desire (it appears) to have confirmation that he really had a tumour had been satisfied, he assented to the operation suggests that it might well have been possible to rely upon the provisions of ss.5 and 6 MCA 2005 to address a situation which, at the end of the medical decision-making process, was not necessarily all that finely balanced. We do not have the postscript that we sometimes have in cases of this kind in which it is explained that the procedure took place; we can just hope no further delay will have occurred in securing for NT the parity in achieving physical health treatment that so often is denied those with mental health conditions.
