Out of hours authorisation of an operation: Inherent jurisdiction invoked to authorise deprivation of liberty where the person was “ineligible” under Schedule 1A Mental Capacity Act 2005

Monday 31 October 2016

An NHS Trust v HN [2016] EWCOP 43, Peter Jackson J, 23 September 2016 On an out of hours application the court held that it was in HN’s best interests to have what was a relatively minor operation in order to prevent much more serious harm, and authorised the operation to be carried out as soon as possible.

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An NHS Trust v HN [2016] EWCOP 43, Peter Jackson J, 23 September 2016

HN was detained in a hospital under the Mental Health Act (MHA) 1983 s 3. She sustained injuries in an apparent suicide attempt. She refused treatment for her injuries. When it was discovered that her humerus bone had ridden up there were fears of serious consequences and the Trust wished to carry out an urgent operation to clean out the wound, trim the bone and seal it up again.

It was envisaged that HN might resist and that restraint would be necessary. As HN was detained in hospital where it was proposed that the operation would be carried out, Case A of Schedule 1A Mental Capacity Act (MCA) applied and she was ineligible to be derived of her liberty under MCA 2005: the authorisation of the High Court’s inherent jurisdiction was therefore sought in accordance with A NHS Trust v Dr A [2013] EWCOP 2442.

On an out of hours application the court held that it was in HN’s best interests to have what was a relatively minor operation in order to prevent much more serious harm, and authorised the operation to be carried out as soon as possible.

The operation was carried out the next morning, with no restraint of sedation having been necessary.

Full judgment: http://www.bailii.org/ew/cases/EWCOP/2016/43.html

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