King’s College Hospital NHS Foundation Trust v LE (by her litigation friend the Official Solicitor) (Serious Medical Treatment) [2025] EWCOP 46 (T3)

[2025] EWCOP 46 (T3)

Case No COP20024211

IN THE COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11 December 2025

Before

MRS JUSTICE THEIS DBE

VICE PRESIDENT OF THE COURT OF PROTECTION

Between

King’s College Hospital NHS Foundation TrustApplicant

LE (By her litigation friend, the Official Solicitor)Respondent

Katie Scott (instructed by Hill Dickinson) for Applicant

Emma Sutton KC (instructed by the Official Solicitor) for Respondent

Hearing Hearing date: 11 th December 2025

Judgment date: 11 th December 2025

Approved Judgment

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[1]The court is concerned with an application by King’s College Hospital NHS Foundation Trust (‘the Trust’) who seek authorisation regarding medical treatment for LE, a 46 year old woman with a long standing diagnosis of schizophrenia and diabetes. She has been an inpatient in the Trust’s hospital since 4 July 2025.

[2]In this tragic case the Trust seek authority to amputate all four fingers and part of the palm on LE’s left hand, and most of her left thumb, the tips of the fingers on her right hand and parts of her toes on both feet due to dry gangrene. Then to carry out reconstruction surgery to both hands to cover exposed bone with tissue from other parts of her body. The plan is for this reconstruction to be done at the same time as the procedure for the amputations.

[3]LE is represented by the Official Solicitor as her litigation friend. It is accepted LE lacks mental capacity to conduct these proceedings and make the decisions regarding this proposed medical treatment.

[4]The court has heard the oral evidence from Dr X, Consultant Plastic Surgeon, and detailed submissions from counsel for the parties, Ms Scott for the Trust and Ms Sutton KC for the Official Solicitor.

[5]I had the very great benefit of meeting LE prior to the hearing starting. She joined remotely from hospital where she had the support of the Official Solicitor’s agent, who had met her before. Ms Sutton KC was in court as was the representative from the Official Solicitor. A note of the meeting has been circulated. LE was able to explain to me that she wanted the doctors to delay carrying out the operation to try what she proposed, including to see if the necrotic damage could be cleaned and washed which could avoid the need for the operation. She showed some recognition that if that didn’t work then the operation may need to be done, stating she would then work with the doctors. She said she would have to listen to them and she didn’t want to die. With great pride she showed me the picture of her youngest daughter who she loves very much and who obviously gives her great joy. It was clear she enjoys her daughter’s visits to the hospital and very much wanted to go home. LE came across as calm and thoughtful about her difficult position and displayed insight about the impact of the proposed operation and its consequences on her and her family. It was very helpful for me to meet LE and hear what she wanted to tell me. She was able to tell me the names of everyone who supports her at hospital and demonstrated that whatever the court’s decision she would have a lot of support to help her understand the court’s decision, even if it was not the decision she wanted.

Relevant background

[6]Prior to being admitted to hospital LE was living in supported care. She has three children, all of whom are in the care of the local authority. The youngest child is a year old and visits LE in hospital.

[7]LE was admitted to hospital as an emergency admissions after a carer found her to be drowsy, incontinent and confused. On admission it was identified that she was in diabetic ketoacidosis and had a strangulated hernia. A laparotomy was performed. She suffered a cardiac arrest post-surgery requiring an admission to ICU.

[8]Whilst she was in ICU treatment needed to be given to LE to preserve her major organs in the form of vasopresser (noradrenaline) medication. This had an impact on her extremities and led to her developing ischaemia and, tragically, subsequent dry gangrene of her fingers and toes.

[9]The plastic surgery assessment of LE is that she has necrotic tissue affecting all four fingers and thumb on her left hand, the distal tips of her fingers and thumb of her right hand (her dominant hand) and the toes on both feet are affected to varying degrees. It is the clinical view of the plastic surgery and the vascular teams that the necrotic tissue requires surgical removal.

[10]Two options were discussed at the best interests meeting on 7 October 2025. Either for the amputations outlined above to take place or for LE to be discharged with no further treatment on antibiotics. The meeting was attended by Dr Y (Consultant Psychiatrist), Dr A (liaison psychiatry), Dr X (Plastics and Reconstructive Surgeon), Ms B (Independent Mental Capacity Advocate), R (nurse in charge) and LE.

[11]Despite having a number of discussions with the clinicians LE has consistently refused to agree to amputation. She has said that she believes the infection will recover, and does not accept that her infected digits won’t recover. She has been treated with antibiotics and wound dressings. The impact on her functional ability is significant. Her left hand is completely non-functional, with fingers and thumbs stiff, immobile and nonsenate. Her right hand retains a very limited pinch and grab function, insufficient for self-care or fine motor tasks. As a result she requires assistance with feeding, dressing and hygiene. She has no sensitivity in her necrotic fingers. LE’s necrotic toes are not used by her for movement so she remains independently mobile however she needs to wear specialist footwear. However, as her necrotic toes have no sensation she is not easily able to protect them from injury. She is currently on morphine for pain control.

[12]Prior to 21 October 2025 LE was considered to have capacity to consent to remaining as an in-patient in hospital. That changed on 21 October 2025 when Dr Y requested that an authorisation be put in place to authorise her deprivation of liberty within the hospital for the purpose of being given care and treatment. An urgent authorisation was put in place on 3 November 2025. To date no assessments have been carried out by the Supervisory Authority. This needs to be addressed without further delay

[13]These proceedings were issued on 6 November 2025.

[14]LE is becoming increasingly frustrated at having to remain in hospital. It is thought this may be caused by a forthcoming hearing in the Family Court in February 2026 regarding the care of her youngest child and she is keen to be home caring for herself by then.

Legal framework

[15]The legal framework regarding LE’s capacity to make decisions regarding her medical treatment is in accordance with ss1 – 3 Mental Capacity Act 2005 (‘MCA 2005’).

[16]The focus at this hearing has been on whether the proposed treatment is in LE’s best interests in accordance with the MCA 2005:

“1 The principles (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action. 4 Best interests (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider– (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. … (6) He must consider, so far as is reasonably ascertainable– (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of– (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare … as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). … (10) “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. (11) "Relevant circumstances" are those— (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.”

[17]The question of whether it is in LE’s best interests to have the proposed treatment needs to be considered within the statutory framework of the MCA 2005 and the MCA 2005 Code of Practice.

[18]In assessing best interests, the court is not limited to consideration of best medical interests, the court has a wide evidential canvas: it encompasses medical, emotional, psychological and social issues per Baroness Hale in Aintree University Hospitals NHS Foundation Trust v James and others

[2013] UKSC 67

at [39] and [45]. Decision makers must look at welfare [39] ‘…in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question…they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be’. [45] ‘…The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament.’

[19]As regards wishes and feelings in ReM, ITW v Z

[2009] EWHC 2525

(COP) at [35] Munby J (as he then was) stated:

“I venture, however, to add the following observations: (i) First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124]. (ii) Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, 'issue specific', so in a similar way the weight to be attached to P's wishes and feelings will likewise be issue specific. (iii) Thirdly, in considering the weight and importance to be attached to P's wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as: a) the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM at para [124]; b) the strength and consistency of the views being expressed by P; c) the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM, at para [124]; d) the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and e) crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests”

Evidence

[20]The written evidence from Dr X, Consultant Plastic Surgeon, sets out that following LE developing dry gangrene there have been many discussions with her about the need for the proposed surgery to remove the necrotic tissue from all four fingers and thumb on the left hand, and the distal tips of the fingers and thumb on the right hand. He confirms the left hand is more severely affected than the right. The toes on both her feet are affected to varying degrees. The precise extent of the proposed amputation will be dependent on intra operative findings but he anticipates on the left hand it will be to the metacarpal-phalangeal (MCP) joint, some of the palm and most of the left thumb. On the right hand the tips of the fingers and thumb, roughly at the distal inter-phalangeal DIP joint. The extent of amputation of the toes will be guided by clinical necessity. In his written evidence he set out that it was likely a flap reconstruction will be required for the left hand to cover exposed bone from another part of LE’s body. Local tissue may be used for the right hand. In his oral evidence he was clearer that due to the extent of the damage in the left hand and the concerns about LE being able to manage the high degree of care required for flap reconstruction, he is more likely to reconstruct using local tissue with some local skin graft. Depending on what is seen during the procedure Dr X said they may take a deep tissue sample, which would take 3 – 5 days to test. If those tests show a future risk of infection the guidelines provide for a 6 week course of antibiotics, with two of those weeks in hospital with it being administered intravenously followed by four weeks of oral medication. Following the course of antibiotics there would be a very low risk of the need for any further surgery in those circumstances.

[21]He anticipates that LE will need to remain in hospital for about two weeks as part of her recovery. Much will depend on the success of the skin graft and wound recovery. He did not anticipate any higher risks for LE although her diabetes is a complicating factor and can increase the risk of infection. Recovery following discharge will vary from 6-12 months with rehabilitation being led by the physiotherapy team as an outpatient and he agreed, if it met LE’s best interests, that he would have outpatient oversight to provide continuity. He has been seeing LE at least weekly for about five months, she is familiar with him although he recognised if he undertook the surgery there may be a benefit of another member of his team being involved. Dr X came across as a highly committed clinician who had the flexibility in his surgical team and was very well attuned to ensure decisions are made that would minimise any distress to LE.

[22]Following surgery Dr X expects LE will continue not to have pinching or grabbing function on her left hand, expects her to continue to have reduced ability to pinch and grab on the right hand, with the prospect of that improving with hand therapy. LE would continue to have reduced mobility on her lower limbs but should be able to mobilise with appropriate physiotherapy enough to enable her to carry out normal daily tasks. When LE is back living in the community she may require accommodation that is on the ground floor.

[23]In his second statement he considers LE has no realistic prospect of regaining functional independence without surgical intervention.

[24]In his two statements he outlines the benefits of the proposed surgical amputation of the necrotic tissue as having a significant reduction in infection risk, it would enable effective physiotherapy, improve function especially of the right hand and the speeding up of LE’s overall recovery. He recognises the proposed procedure is against LE’s wishes. The disadvantages of not having the proposed treatment are that there is a high likelihood of infection, sepsis, further tissue loss, worsening function and potentially death. This option is considered clinically unsafe by the surgical team. LE has been in receipt of conservative management since the time of the original ischaemic injury with no improvement or any possibility of healing. There is an increased risk of infection on the necrotic tissue with the risk of sepsis and death. The likelihood of sepsis is difficult to predict as it depends on personal and domestic hygiene, and access to care. Dr X considers given LE’s history of poor self-care and inability to manage wounds there is a very high risk of infection and sepsis, stating ‘necrotic tissue, especially when exposed or self-amputated, can progress to system infection rapidly – often within days to weeks. LE is in the highest risk population being T2 diabetic.’ He sets out that long term antibiotic prophylaxis for necrotic tissue is ineffective in preventing infection. It carries significant risks, including antimicrobial resistance and the risks of wound care in the community that cannot provide the close monitoring required to detect early signs of infection. He considers there would be a ‘high risk of delayed recognition of sepsis’. He sets out the NICE guidelines and other studies that support his conclusions. In his opinion the proposed treatment offers the only realistic chance of preventing serious harm.

[25]In his statements Dr M, Consultant Anaesthetist, sets out the staged process in preparing LE for the proposed procedure. His evidence is supported by a detailed care and treatment plan that has been amended during the course of this hearing, and which sets out the various ways LE would be supported in preparation for the surgery. He details a comprehensive graduated approach in managing the situation, which would be dependent on the extent of LE’s co-operation. The aim is to allow safe conveyance of LE to theatre and includes the option of administering sedation and, if required, minimum physical restraint. In his second statement he sets out that the risks to LE of having a general anaesthetic are low and not considered to be any different than those for a similar patient with LE’s medical profile who has previously undergone anaesthesia without complication.

[26]Dr Y is the Consultant Liaison Psychiatrist and Clinical Director in Acute and Urgent Care. She undertook the capacity assessment and completed the COP3 form setting out the basis upon which she concluded LE lacks capacity to make decisions regarding the proposed treatment. In her statement she outlines the history of LE’s involvement with her team. Her first direct involvement was on 23 September 2025 for the purposes of the joint capacity assessment. During that assessment LE expressed some unusual and inaccurate beliefs around the cause of her necrotic fingers and toes. For example, reporting she had a plaster cast on which had got dirty and caused bugs which had given her the infection, the drips from her hands had caused her toes to become dirty, she voiced a desire to be discharged and see a chiropodist, as that was required by way of treatment. The assessment concluded whilst her understanding of what the procedures entailed, and her communication and retention were not in doubt, LE lacked capacity because she did not believe explanations as to the cause of her symptoms, and as such was unable to use or weigh the information to come to a reasoned decision.

[27]Dr Y reviewed LE again on 14 October 2025 and 21 October 2025, she noted an increasing frustration by LE at the delay in discharging her from hospital and more dissatisfaction with the proposed plan for surgery. She concluded that LE lacked capacity to make decisions about remaining in hospital and an urgent Deprivation of Liberty authorisation was sought. The COP3 form was completed on 23 October 2025. In further reviews in November 2025 LE’s mental health was noted to be stable. As well as the regular reviews by liaison psychiatry LE has also been visited about three times per week by staff from the Vulnerabilities Team who are a social worker, and a mental health and general nurse, with a role to support people on wards with mental illness. Dr Y considers this has been invaluable at providing support and befriending LE.

[28]Dr Y recognises that compelling anyone to have treatment against their will, especially life changing surgery, will cause them distress and upset however she considers that as a result of LE’s contact with mental health services and children’s social care she has an understanding that court decisions are final, carry authority and are to be respected. LE has said to Dr Y that if the court was to say she should have the surgery she would ‘go along with it’. Dr Y considers LE is a particularly resilient and pragmatic person. She has undergone significant trauma in her life yet has an approach to getting on with things which she considers may reduce the level of distress LE may feel. Dr Y considers LE has a strong relationship with the mental health and clinical team, at least one of them has known LE for over 20 years. This will assist in managing and mitigating the risks of LE’s distress and if the court decides the treatment should go ahead Dr Y details how LE will be supported by people who are familiar to her. In her view LE is keen to be discharged from hospital and once the court makes a decision firm plans can be made. LE will have continuity of mental health support in the community by the team who are known to her. Prior to admission she lived in 24 hour supported accommodation. There is no plan to reduce that level of support and there is the possibility of adding in a further package of care to assist if that is required on discharge.

[29]A solicitor instructed as agent for the Official Solicitor visited her on 30 November 2025, and filed a statement detailing what was said at that meeting. That statement confirmed LE’s continued opposition to the proposed treatment. She considers her necrotic skin is a cast, she knocked it and said ‘you can’t do that to normal skin’. She considers the doctors have put a cast on her skin and that had got infected. She did not accept she had gangrene, she considered it was dirt on her skin and that it could be washed off or her arm could be frozen.

[30]A second opinion was sought by the Trust from Dr G (Consultant Plastic Surgeon with a neighbouring Trust) who has filed a statement supporting the best interest conclusions reached by the clinical team.

Discussion and decision

[31]In their excellent written documents Ms Scott and Ms Sutton KC analyse the evidence and best interest conclusion with care and clarity. Having heard the evidence the Official Solicitor now fully supports the application by the Trust.

[32]My meeting with LE was extremely helpful. Wholly understandably she was scared and worried about what was being proposed. I was struck that she had some understanding of the court, that I would be making a decision and this was her opportunity to tell me what she wanted me to hear. I explained I would listen to what everyone said before I made any decision and she understood that.

[33]As regards LE’s capacity to conduct these proceedings and make decisions about her medical treatment the assessment of Dr Y is detailed, reasoned and, in my judgment, soundly based. LE is able to understand, retain and communicate the relevant information regarding the proposed medical treatment but is unable to use and weigh the relevant information. As Dr Y observed LE ‘displays a degree or perhaps denial or magical thinking, in keeping with what her community psychiatrist describes her doing with regards other types of major life decision’. This is illustrated by her reference to dirt causing the infection that with cleaning will heal up. Dr Y concluded that LE is unable to make a decision regarding her medical treatment due to her diagnosis of schizophrenia, thereby establishing the causal link as required by s2(1) MCA 2005. This is not because of her delusional belief regarding the surgery, but due to what Dr Y describes as ‘her rigid, concrete way of processing information [which] means that she cannot hold two opposing options in mind and weigh them up against each other’.

[34]Turning to consider whether it is in LE’s best interests to have the proposed medical treatment the two options before the court are either to have the proposed amputation surgery or conservative management only.

[35]The factors that weigh in the balance in favour of having the proposed treatment are the presumption to preserve life. LE told me this morning, as she has told others, that she doesn’t want to die. The evidence from Dr X, which I accept, is that without the proposed surgery there is a very high risk of infection and sepsis. Necrotic tissue, especially when exposed or self-amputated, can progress to system infection rapidly, often within days to weeks and LE is in the highest risk population due to her diabetes. Dr X also considers that without the surgery LE’s pain is likely to escalate significantly, she has no realistic prospect of improvement and is more likely to deteriorate, further reducing her ability to perform basic tasks. LE’s values and beliefs are evidenced by the strength of her feelings for her family, in particular her youngest daughter. She enjoys seeing her, would like to spend Christmas with her and continues to want to prove herself to children’s services that she can be a good mother, parent or have a role in her daughter’s life. I accept Ms Sutton’s submission that it is reasonable to draw an inference from this that LE would want to be as healthy as possible in order to continue to play a role in her daughter’s life. The very high risk of infection if she did not have the treatment is at odds with her obvious wish to want to play a role in her daughter’s life. Finally, the clinical and medical evidence all conclude that the proposed treatment is in LE’s best interests. As the evidence has detailed this is a clinical team that have known LE for about five months, had valuable input from the community mental health team who have known LE for many years and have provided committed and sensitive wrap around support for LE in reaching this balanced and well-reasoned conclusion which I accept.

[36]The court recognises LE’s wishes and feelings have remained consistent in opposition to this proposed treatment. Whilst the court must consider these views carefully they need to be considered in the context in which they have been made. They are founded on an irrational basis, including that the necrotic tissue is dirt that can be washed of. I accept the assessment of Dr Y that whilst LE has maintained this opposition she has a recognition and understanding that it is the court that is making the decision. That came across in what she said to me this morning. Finally, it was clarified in the oral evidence from Dr X that providing there are no wound complications the recovery plan is not overly onerous and it is unlikely LE would need significantly more care than she had previously, although there would be the tailored support she would require specific to the operation, such as hand therapy.

[37]Having carefully considered the evidence and balanced the competing best interest considerations regarding the options before the court I am satisfied it is in LE’s best interests for this application to be granted and for what is now a detailed care and treatment plan, submitted by the parties at the conclusion of the hearing, to be approved. Whilst I have carefully and fully considered LE’s wish for there to be a further delay for her ‘alternative’ plan to be looked at, I accept Dr X’s evidence that there is nothing to be gained by any further delay. On the contrary, in my judgment, further delay would be contrary to LE’s best interests due to the risks, in particular of infection. The court can be confident the dedicated clinical team are wholly committed to taking all steps possible to mitigate any distress LE will feel when informed of the decision and what lays ahead for her. Their level of support and expertise to date demonstrates their commitment to do all they can to make this difficult procedure and post operative recovery take place with LE’s best interests at the core of any decision they make.