Alex RKIn A NHS Foundation Trust v MC [2020] EWCOP 33, Cohen J has confirmed that it can be in the best interests of a person to donate stem cells, applying the test set down in s.4 MCA 2005. The case concerned a young woman, MC, who had recently turned 18, and the potential donee was her mother, who had chronic leukaemia. The precise basis upon which it was said that MC lacked capacity to consent to the harvesting and use of the stem cells does not appear from the judgment, the focus being upon whether it was in her best interests to do so.
The decision does not, perhaps, come as a surprise given that it had been understood long before the MCA was enacted that altruistic donation could be in the (common law) best interests of an individual: see Re Y (Mental Patient: bone marrow donation) [1997] Fam 110. It is, however, helpful to have the confirmation of the position by reference to the MCA itself. It is also of no little interest that Cohen J was careful to identify the risks to the woman, MC, as well as the benefits to her, which he identified as follows:
15. Without the transplant MC’s mother’s prospects are poor and deteriorating. Whilst there is no certainty of the outcome of the procedure it elevates a poor chance of survival to a 43-45% survival rate at 5 years, and that is obviously a potentially highly significant benefit. MC lives at home with a loving family and there are clear benefits, emotional, social and psychological, to MC of her mother’s life being extended.
16. Next I must give weight to the fact that although MC has not understood the details, she understands that her mother is not well and that she may have ability to extend her mother’s life and perhaps enable her to recover. MC wants to do that – it has been her repeated wish expressed to the doctors and to the Official Solicitor that she wants to give what help she can.
17. I also give some weight, although lesser weight, to the fact that MC may be seen by others positively by acting altruistically.
18. I agree with both Counsel that it is overwhelmingly in MC’s best interest 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.
Cohen J identified that (perhaps surprisingly) 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 Court of Protection and the first time the Human Tissue Authority (‘HTA’) had been involved in a case of this nature.[1] The HTA has a statutory responsibility to assess all donations of bone marrow or peripheral blood stem cells from adults who lack capacity to consent and children who lack competence to consent.[2] Potential donors that lack capacity or competence must be referred to an Accredited Assessor (AA), who submits a report to the HTA following interviews with the donor, the person/s acting on the donor’s behalf and the recipient. Cohen J expressed some views about the process undertaken by the HTA, noting at paragraph 22 that “there should be a considered risk and benefit analysis by the accredited assessor. […] 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.”
One other point of interest is that Cohen J appeared to take it as self-evident that the decision to consent had to be taken by the court as there was neither an LPA nor a deputy who had the power to consent on MC’s behalf (see paragraph 19). This appears to have been reflecting the approach taken by the HTA itself, on the basis that the Human Tissue Act makes no provision for appropriate consent for the removal of material from a living adult who lacks capacity to consent for himself or herself, such that, where there is no ADRT refusing consent or LPA or deputy to consent, the HTA considers that Court of Protection must make the decision on behalf of the person.[3] Interestingly, however, the HTA’s approach is founded upon the statement in the Code of Practice to the MCA that, where an adult lacks the capacity to consent to the removal of bone marrow, the case must be referred to a court for a declaration that the removal would be lawful. The HTA “believes that the same approach should be adopted for donation of PBSCs. Donation may then only proceed if court approval has been obtained and, following court approval, the case is referred to, and approved by, an HTA panel.” However, as the Supreme Court identified in NHS Trust v Y [2018] UKSC 46 (in the context of life-sustaining treatment), the Code of Practice cannot, itself, establish a legal obligation to bring a case to court – it would, perhaps, be helpful in the next case which comes before the Court of Protection in this area for the court to spell out precisely why there is such an obligation in this context.
[1] The exact nature of its involvement is not clear, because they were not a party and it does not appear that it made any submissions to the court.
[2] By virtue of the Human Tissue Act 2004 and the Human Tissue Act 2004 (Persons who Lack Capacity to Consent and Transplants) Regulations 2006 (‘the Regulations’). The restrictions on and requirements for living organ donation and transplantation are set out in sections 33 and 34 of the Human Tissue Act and sections 9-14 of the Regulations. They require that donations of bone marrow and peripheral blood stem cells from children (anyone under the age of 18) who are not competent to give consent, or from adults lacking capacity, must be approved by the HTA. The Regulations include the requirement that the HTA is satisfied that consent for removal of the material has been given, or the removal is otherwise lawful (for example sanctioned by the Court).
[3] See paragraph 36 of the HTA’s Code of Practice G: Donation of allogeneic bone marrow and peripheral blood stem cells for transplantation.
