The son, and primary carer, of an 83 year old woman who suffered from a number of medical problems including Type I diabetes, objected to his mother’s left leg being amputated below the knee.

She was suffering from a diabetic foot: her toes and forefoot were gangrenous and necrotic and had been infested with maggots at the time of her admission to hospital three months previously. It was only a matter of time before she became antibiotic resistant.

Her treating doctors considered that she was at risk of septicaemia and death if the gangrenous, dead tissue was not removed and that amputation below the knee offered her the best chance of a good quality of life. They also considered that she lacked capacity to make a decision about surgery and given the son’s objection, the Trust applied to the Court of Protection for declarations about capacity and surgery.

A report was obtained from an independent expert and Mrs. Justice King cleared her busy diary so that the case could be heard.  The son, treating surgeon, nurses and independent mental capacity advocate and independent expert were all present and the mother was represented by counsel acting through the Official Solicitor. In the course of the day’s hearing, a consultant psychiatrist and Mirpuri translator visited the mother in hospital and undertook a further capacity assessment; the psychiatrist’s evidence was then telephoned to the court within an hour of him making his assessment.

In an extempore judgement, the Judge decided that the evidence was all one way and that it was overwhelmingly in the patient’s best interest that she have the long proposed surgery. She also decided that the patient lacked capacity.

His solicitors and counsel having indicated that they would not be filing an appeal against the decision, the son, acting as a litigant in person, went to the Court of Appeal.  The appeal was heard eight days after the first instance hearing and about 24 hours before the amputation was scheduled to take place. The son was not present in court at 10.30 when the hearing commenced and it became apparent that he had not realised that the Court of Appeal sat in London. The Court therefore adjourned until 2pm when his evidence could be heard by video link. Having listened to the son repeat his personal view that his mother had capacity and that below knee amputation was unnecessary, the Court of Appeal dismissed his application for permission to appeal and reaffirmed the declarations allowing the operation to take place which it did uneventfully.

The decision serves as a reminder of the careful and anxious thought that that the Court of Protection and appellate courts put into all medical treatment cases even those that, unusually, are obvious and not finely balanced. It also underlines the speed with which the court system can and does respond when time is of the essence and the vital part played by technology and a modern approach to evidence taking.

The case was reported in the Birmingham Mail. Click here to read the article.