The Rotherham NHS Foundation Trust v NP & Anor [2026] EWCOP 27 (T3)

[2026] EWCOP 27 (T3)Case No COP 20018846
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF NP
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 May 2026
Before
MR DAVID REES KC(Sitting as a Tier 3 Judge of the Court of Protection)(Rotherham NHS Foundation Trust v NP & Another (Best Interests: Breast Cancer Treatment))
Between
THE ROTHERHAM NHS FOUNDATION TRUSTApplicantNPRespondent(By her litigation friend the Official Solicitor)RespondentSHEFFIELD TEACHING HOSPITALS NHS FOUNDATION TRUSTRespondent
Ms Francesca P Gardner (instructed by DAC Beachcroft LLP) for ApplicantMs Sophia Roper KC (instructed by the Official Solicitor to the Senior Courts) for First RespondentMr Ian Brownhill (instructed by Hill Dickinson LLP) for Second RespondentHearing Hearing date: 18-19 May 2026This judgment was delivered in public but a transparency order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of P and her family members must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Mr David Rees KC

Introduction

[1]I gave an oral judgment in this matter at the conclusion of the hearing on 19 May 2026. This note of the judgment has been approved by me from a note prepared by the parties. I am grateful to them for their assistance in this regard.[2]This is an application relating to NP, a 67 year old resident in a care home in Rotherham. I have to decide issues relating to her treatment for breast cancer, specifically whether it is in her best interests to take CDK 4/6 inhibitors as part of that treatment. The application is brought by The Rotherham NHS Foundation Trust. The Applicant Trust has had responsibility for the initial investigations and treatment for NP’s cancer; specifically it has been looking at the issue of surgery, although that is, as I will explain later, no longer a possibility. It is represented by Ms Francesca Gardner of counsel.[3]NP is the First Respondent. She is represented by the Official Solicitor who acts as her litigation friend and has instructed Sophia Roper KC. The Second Respondent is Sheffield Teaching Hospitals NHS Foundation Trust, which is now responsible for NP’s cancer treatment, now that surgery not an option. It is represented by Mr Ian Brownhill of counsel. I am grateful to all counsel for their written submissions and the careful manner in which they have conducted these proceedings.[4]NP has had a difficult life. I have had the opportunity to read a short biographical note about her written by her sister PP, who has attended both days of the hearing. Her concern and care for her sister is obvious. She has played a significant role in preparation for this hearing and attending the hearing itself. I am extremely grateful to her for having done so.[5]It is clear that since moving to her current care home in 2010 NP has had a much better quality of life than she had had hitherto. NP has a longstanding diagnosis of schizophrenia and has been sectioned on a number of occasions, most recently between February and May 2025. She has previously been on Clozapine which is an antipsychotic medication but she did not tolerate that, and is now on a depot medication called Olanzapine. She is under the care of Dr Seelam, who is a Consultant Psychiatrist.[6]NP likes nature, she likes bird watching, I have seen a semi-autobiographical story written by her and a large number of poems. These have themes of nature running through them and are clearly underlined by her Christian faith. Some of these poems have been published. It is clear to me that these things bring enjoyment to her, and provide her with a quality of life. She has led a fairly self-restricted life in her care home but I understand she has been venturing out more recently into communal areas and joining in group activities.[7]NP is at the centre of this case and of my determination. The impact of the treatment options that are under consideration on her quality of life is a very important factor to my decision.

History

[8]I will start by summarising some of NP’s recent medical history. In April last year she was referred to the Applicant Trust for post-menopausal bleeding. A health and welfare application was brought to put in place a plan to convey her to hospital for investigations and an order was made by a Tier 2 Judge in Sheffield on 19 August 2025. Shortly after that, on 27 August 2025, NP noticed a breast lump and following an urgent referral from her GP was assessed by Dr Seelam (her consultant psychiatrist from the Rotherham Doncaster and South Humber NHS Foundation Trust) as lacking capacity to make decisions as to investigations into that potential condition. It was already planned that NP would be attending hospital on 9 September 2025 in relation to her bleeding and planned that she would have a general anaesthetic. Therefore, it was agreed that on the same day, investigations would be undertaken in respect of the lump and a biopsy performed.[9]I understand this trip to the hospital went well. She was provided with lorazepam and was cooperative throughout. Her lump was suspicious and the biopsy confirmed a grade 3 invasive ductal carcinoma. On 25 September 2025 NP was started on Letrozole. This is an endocrine treatment that reduces the size of the cancer or stops it from growing, and consists of one tablet taken orally each day. I am told that NP is compliant with this medication. There was initially consideration as to whether NP should be referred for surgery and concerns were raised as to whether she would be willing to have it; what the effect of the surgery would be; and how she would react to the post-surgical wounds and treatment.[10]As a result of these concerns various best interests meetings took place. One issue under consideration was whether NP should have a CT scan to see if the cancer had metastasised. If it had not metastasised, surgery could provide a cure. If it had metastasised, and had spread outside her breast and lymph nodes, it would need to be treated systemically through drugs rather than surgery. There was at that time significant concern that NP would not tolerate a CT scan or other treatments or surgery being considered.[11]On 2 February 2026 an application was issued seeking an urgent hearing. This referred to the treatment decisions that needed to be considered by the court, including the option of surgery, as finely balanced. The matter was allocated to the personal welfare pathway and listed for a hearing in Sheffield. That decision is of some significance. If it had been treated as a Serious Medical Treatment application immediately and referred to a Tier 3 Judge the Official Solicitor's costs of acting would have been met 50% by the Applicant. However, the effect of allocating the matter to the personal welfare pathway was that an application had to be made for legal aid and that delayed matters somewhat.[12]A mammogram was performed on 25 February 2026.[13]The initial hearing date had to be vacated as the Official Solicitor's acceptance criteria had not been met. The first hearing took place on 26 March 2026, seven weeks after the application was issued, before a Tier 2 Judge in Sheffield. At that point the matter was reallocated to Tier 3 and listed before Theis J, the Vice President, for a hearing on 20 and 21 April. That hearing was vacated as, shortly beforehand, arrangements had been made to attempt a CT scan of NP. Directions were made by consent that led to the matter was re-listed before me on 18 and 19 May.[14]NP underwent the CT scan, she was compliant and even said she enjoyed it, but sadly the scan confirmed that the cancer had metastasised. That is important as the medical recommendation is now that she should have systemic treatment and not surgery.[15]In her position statement the Official Solicitor indicated a wish to explore why surgery was now ruled out and I heard from Dr Narayanaswamy NP’s Oncologist (employed by the Second Respondent) yesterday who explained that because the cancer has spread it needs to be treated systemically, and the previous option of surgery with a view to curing the cancer by removing it entirely was no longer an option. She did not rule out the possibility of surgery taking place in the future to deal with specific issues, but she was quite clear, as was the written evidence of Miss in 't Hout (a consultant breast surgeon employed by the Applicant) that surgery is no longer the appropriate treatment option in this case and would not be offered to a capacitous patient in NP’s position. I understand that is accepted by Official Solicitor.

Treatment Options

[16]The treatment options now available to NP are twofold.(1) She could continue on the Letrozole, the endocrine treatment she is currently taking with a view to stopping the growth, or hopefully reducing the size, of her existing tumour, or(2) she could take Letrozole in combination with CDK 4/6 inhibitors. The latter treatment option appears likely to prolong her life for longer, but it comes with the possibility of more severe side effects.[17]I heard evidence from Dr Narayanaswamy and Dr Seelam. I am grateful to them both for giving up their time to attend court and to Miss in 't Hout who has also attended but who was not called upon to give oral evidence.[18]The key point within the evidence is the likely effects and side effects of the CDK 4/6 inhibitors and whether NP would be likely to comply with the necessary monitoring when these drugs are prescribed. It is common ground that she is tolerating being treated by Letrozole. She is taking it daily and does not appear to have any significant side effects. It is unclear whether she is aware it is a tablet for cancer. She may have been told at some point but if she has been told she appears to have forgotten. NP has had some difficulty understanding that she has been diagnosed with cancer.[19]The evidence is that Letrozole alone would work for around two years or so and may stop the cancer growing or possibly even reduce it in size. If it stops working then there are another two or three endocrine treatments that could be tried. Together these treatments offers her a number of years, potentially five or so, left to live. If endocrine treatment is taken alongside CDK 4/6 inhibitors she would be likely to have an increased life expectancy. The combination of the two drugs is likely to supress the growth of the cancer for longer, but once the drugs stopped working, the prognosis would be similar to if she remained on Letrozole alone. The evidence is that taking CDK 4/6 inhibitors with Letrozole could add one to two years to her life expectancy.[20]However, inhibitors come with serious side effects - tiredness, nausea, constipation, hair loss, inflammation in the lungs and risk of blood clots.Most significant of all, they come with a high risk of infection and specifically serious infections including sepsis. For this reason, patients are required to undergo various types of monitoring including daily temperature checks, self-reporting of symptoms and blood tests every two weeks for the first eight weeks, and thereafter once a month, for the duration of the time they are on the drugs. There has been significant concern that NP would not comply with this monitoring, especially in relation to the required blood tests.[21]When asked to put numbers to the risks of infection or serious infection by Ms Roper in cross examination, Dr Narayanaswamy indicated that she considered there was something between an 8-9 out of 10 risk of NP having an infection whilst on CDH 4/6 inhibitors, but also a 6-7 out of 10 risk that she would contract sepsis or some other serious infection or complication. Dr Narayanaswamy met with NP on 14 May and on that occasion reviewed her “performance status” - her ability to carry out tasks. This is graded on a scale between 0 and 4, with the lower number representing the greater ability.Dr Narayanaswamy graded NP between a 2 and 3 on that scale on the basis she would effectively be spending more than 50% of her day in a bed or a chair and was able to carry out only basic functions. The assessment, I was told, is based on physical robustness but also contained a competent which considered her quality of life. Having reached the conclusion NP had a performance status score of between 2 and 3 Dr Narayanaswamy took the view it was not in her best interests to have the CDK 4/6 inhibitors. Her evidence was that a patient who had a score such as this would not be automatically funded for such inhibitors, and a funding request would need to go to the relevant committee.[22]Dr Seelam originally considered that a trial of CDK 4/6 inhibitors would be in NP’s best interests but, having heard Dr Narayanaswamy's evidence, she altered her view and her final evidence was that it is not in NP’s best interests to attempt a trial of the inhibitors, a conclusion that was based, not least, on NP’s own wish not to take cancer medication.

Capacity

[23]The jurisdiction of Court of Protection is based on the person concerned lacking capacity. The test of capacity is set out at section 2 of the Act. This provides as follows:
“(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to— (a) a 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 his capacity. … Section 3 of the Act provides guidance on what is meant by “unable to make a decision for himself” in subsection 2(1) of the Act. This provides: (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means).”
[24]I have seen the COP3 assessment of capacity completed by Miss in 't Hout with input from Dr Seelam dated 2 October 2025. The assessment concluded NP had a lump in her breast but was not able to accept, understand, use, weigh or retain the information that she had cancer. It concluded that NP was unable to make a decision in relation to her treatment for cancer and that this inability arose as a result of her paranoid schizophrenia and associated delusional beliefs. It concluded that NP lacked capacity to make decisions about her treatment for cancer. That conclusion has not been challenged by the Official Solicitor on NP’s behalf. It is accepted by all parties and I accept it also. I am satisfied that NP lacks capacity to make decisions in relation to her cancer treatment, and therefore the jurisdiction of this court is engaged.

Best Interests

[25]It therefore falls to the court to take the decision as to what lies in NP’s best interests. Under section 4 MCA 2005 I am required to take into account all relevant circumstances, including whether she will recover capacity but also, so far as reasonably ascertainable, her own past and present wishes and feelings, the beliefs and values likely to influence her decision if she had capacity and the other factors that she would be likely to consider if she were able to do so. I must also take into account, if it is practicable and appropriate to consult them, the views of anyone named by her as someone to be consulted, anyone engaged in caring for her and anyone interested in her welfare.[26]I am satisfied that NP is unlikely to regain capacity to make decisions about her cancer treatment, at least within the timescales applicable to that treatment. The most effective medicine for schizophrenia, Clozapine, is one she has consistently refused to take over a prolonged period.[27]NP’s own views on her cancer treatment have been canvassed. I have seen a witness statement filed on behalf of the Official Solicitor from Kate Jackson at MJC Law. She met with NP on 15 May and I have seen the attendance note of that meeting. What comes out of that attendance is that there are a couple of issues upon which NP is expressing views that seem to be consistent. She did not want to take tablets that could or would make her sick and dizzy, but would not mind trying something if it does not make her sick. I am struck by the extract where Ms Jackson asked NP if she had been spoken to about what might happen if she does not have treatment. NP was able to explain that it will get worse and she could die. She said she would rather die than take tablets and be sick all of the time. Nonetheless, NP has also indicated that she does not want to die. NP has another sister who had treatment for breast cancer in the past, and has previously expressed the view that she would not want to go through that.[28]In terms of the views of others, I have taken into account what is said by all of her treating doctors. I heard evidence from Dr Narayanaswamy and Dr Seelam. Most importantly I have considered what PP has said. She has clearly thought hard about this matter and has previously provided views that are set out in emails that have been included in the bundle before me. In respect of surgery she said she felt that NP would find that traumatic. She also provided an email today having heard Dr Narayanaswamy's evidence yesterday which said as follows:
"I listened to the hearing yesterday and it is still very difficult to decide what I think would be the best course of treatment for NP. There are arguments for and against on both sides. However Letrozole was initially given to buy more time till NP either gained capacity or became more compliant. Maybe now she is getting there. There were a lot of assumptions that she wouldn't be complicit with scans, temperature, blood tests etc, and they were probably right, but she has already agreed to them now to some degree. Therefore I feel she should be given the best possible treatment to prolong her life and make it as comfortable as possible. NP is used to having regular blood tests and her temperature could possibly be taken in the foyer of her home which might help. If as I understand it will be, NP health regarding side effects and CT scans are monitored closely, and it can be withdrawn if necessary, maybe the inhibitor could be given alongside the Letrozole as long as it didn’t make her distressed. Hopefully it will help in the effects from the progress of the cancer. This is the most difficult decision I have ever had to make and I acknowledge that I am saying it as a concerned sister not from a medical point of view."
[29]I am extremely grateful to PP for providing her views like that, but I want to make clear the decision is mine and mine alone and I must take responsibility for it. The decision is that of the court and PP should not feel under any responsibility for the decision ultimately made.[30]For the Official Solicitor Ms Roper described this case as finely balanced and I agree. NP currently has a good quality of life and the evidence is that this is probably the best quality of life that she has enjoyed for a significant period of time. It is therefore in her best interests for that quality of life to be preserved, and if possible, extended. The difficulty is that the CDK 4/6 inhibitors can extend life, but the tiredness, nausea and other side effects may be likely to affect the quality of her life. There is no suggestion that NP should be supplied with CDK 4/6 inhibitors against her will. The evidence I have, which is somewhat limited, is that the covert administration of this medication by crushing or providing it in a drink would make it less effective.[31]If all other factors were equal and I were simply considering the question of a trial of the inhibitors, I consider that there is much to be said for seeing how that trial would go and how serious the side effects were. Clearly if NP refused to take the medication or were to suffer significant side effects then the trial would need to stop, but, and this was Dr Saleem’s initial view, there is force in the argument that a trial of medication that could delay the development of her cancer should be attempted. This would accord in many ways with NP’s own wishes – she does not want to die and may take pills that do not make her sick. It would accord with PP’s views as well.[32]However, the rock on which this argument founders, identified by Ms Roper as the magnetic factor, a description with which I agree, is the risk that the inhibitors present of NP sustaining a serious infection or sepsis.As I have already mentioned there is a requirement for monitoring when a patient is receiving CDK 4/6 inhibitors. I think it likely NP would in fact comply with this. The daily taking of her temperature in the care home or self-reporting of symptoms is unlikely to cause any practical issues. The requirement for blood monitoring is less certain, but NPhas repeatedly confounded the expectations of those treating her that she would not comply with various procedures and I understand she has had blood tests taken on a number of occasions. The tests can be taken in the care home and there is a possibility, or even a real probability, that she would comply. If she failed to comply that might be a reason for a trial to cease.[33]However, Dr Narayanaswamy put the risk of sepsis or serious infection at 6 to 7 out of 10. If she is correct in that assessment it seems to me to be a serious risk and the use of these inhibitors would be more likely than not to shorten NP’s life rather than extend it. If that is the case it is a strong countervailing factor pointing against a trial of inhibitors in this case.[34]I share the Official Solicitor's concern regarding the limited nature of evidence produced on this particular issue. Dr Narayanaswamy's cross examination was the first time specific numbers were placed on those risks, and whilst what I say is not in any way intended as a lack of respect for Dr Narayanaswamy's evidence, the numbers she provided were effectively a best estimate having being placed on the spot by Ms Roper. Ms Roper has proposed that the Second Respondent should be directed to provide additional written evidence so that this issue can be looked at in more detail(a) by the parties, and(b) if necessary, by the court.[35]I agree with the Official Solicitor. As the evidence stands the risks to NP of a trial of inhibitors outweigh any potential benefits. She is currently enjoying a good quality of life. Treatment with inhibitors could upset that. A simple use of a trial to see if there are side effects and whether the inhibitors are worth pursuing would, in my view, absent the risk of serious infection, potentially be worth pursuing. However, the risk of sepsis and serious infection changes that balance and if the risks are as Dr Narayanaswamy says I do not consider it to be in NP’s best interests to even start the trial. I will therefore make a declaration to that effect.[36]I understand that the Second Respondent has agreed it will provide a plan for what will happen if NP stops taking Letrozole. I will also provide in my order for further written evidence of the risks of sepsis and serious infection to be provided by the Second Respondent with a view to the parties holding discussions. I will grant permission to the Official Solicitor to apply to restore the application if that fresh evidence significantly changes the balance. Any restored hearing will be reserved to me.[37]I will also need to consider the date to which the transparency order should be extended.[38]The Official Solicitor has raised concerns about delay by the Trust bringing this case before the court and in the way it was dealt with by the court. I am not in a position to undertake an enquiry as to what has taken place here. I am not in a position to find that there was an unnecessary delay in this case or, if there was, to ascribe blame.[39]However, I will briefly make a couple of observations. First, when making clinical decisions and where there may be a best interests element involved, it is important for treating doctors to keep in mind the option of going to court where matters are difficult, the consequences serious, or the issues finally balanced. Second the court receives a number of applications which describe themselves as relating to serious medical treatment but that are nonetheless allocated to judges below Tier 3 or in the regions. If a particular case is considered to require a Tier 3 Judge, the application should clearly set out the factors which are relied on in this regard. Finally, if, in the views of the parties, the court has got the allocation wrong there is the option of seeking reconsideration pursuant to rule 13.4 of Court of Protection Rules 2017.[40]I will therefore make an order in the terms discussed.