The Newcastle Upon Tyne NHS Foundation Trust v RB [2021] EWCOP 11

This was an application brought by the Newcastle upon Tyne Hospitals NHS Foundation Trust in respect of a young man, RB, who was under the care of the Trust in respect of his oncology care. The issue to be decided was whether the form of cancer care set out by the Trust was in RB’s best interests, and whether the court should make a declaration to that effect under the Mental Capacity Act 2005.

RB has a diagnosis of Fragile X Syndrome, a genetic condition causing learning disabilities which affects something like 1 in 4,000 boys and men. He also has atypical severe autism, dysphagia and has limited verbal communication.

On 27 September 2020, RB was diagnosed with testicular cancer and, on 8 October 2020, underwent surgical removal of his left testicle. Unfortunately, a CT scan on 10 December 2020 showed that the cancer had spread into RB’s lymph nodes and that his presentation was consistent with metastatic germ cell cancer. This is a highly curative type of cancer using chemotherapy, and the Trust’s treatment plan favoured chemotherapy rather than surgery, a plan that was, by the time of hearing, agreed by RB’s mother (his litigation friend).

There was no issue that RB lacked capacity to make decisions regarding his treatment. Mrs Justice Lieven therefore considered what was in RB’s best interests. The court heard evidence from three clinicians with regard to three outstanding issues as to the form of treatment RB should receive, and subsequently made the declaration sought, stating that there was no basis to pursue the surgical route rather than stay with the Trust’s treatment plan of four cycles of chemotherapy.

The full judgement can be read here

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