Court Of Protection Consider Whether Dental Treatment Is In The Protected Party’s Best Interests

Many cases before the Court of Protection concerning a person’s health and welfare revolves around whether or not treatment should be provided. The type of treatment will vary depending on the case and can be anything from major life-saving treatments to more minor treatments, as seen with the recent case concerning dental treatment. Regardless of the treatment, the Court of Protection’s decision will determine whether the treatment is in the Protected Party’s best interests.

In reaching a decision, the Court of Protection will weigh up all of the relevant factors in relation to the Protected Party’s best interests. These factors could be, but are not limited to:

No factor will outweigh another and the circumstances of the case in question will determine the most important factors for the Protected Party. A further consideration for the Court of Protection will be the timing and necessity of treatment as health and welfare cases are often urgent by their nature and the Court of Protection aims to deal with applications without delay.

BNK (Dental treatment) [2023] EWCOP 56

Case background

The recent case of Lancashire and South Cumbria NHS Foundation Trust v BNK (by his litigation friend, the Official Solicitor) considered whether or not it was in the Protected Party’s best interests to receive dental treatment. The Protected Party lacked capacity by way of his severe learning disability and autism. The Protected Party had several broken teeth which resulted in abscesses and was believed to be causing pain. The NHS sought to extract the damaged teeth whilst the Protected Party was under general anaesthetic and carrying out any further treatment if necessary following further examination.

The Court of Protection had to weigh up several factors when considering the treatment. One risk arose due to the Protected Party being believed to be a Jehovah’s Witness, which meant the Protected Party would otherwise refuse a blood transfusion if this became necessary. The risk of needing a blood transfusion was remote and would only arise in the event of an emergency where there was an issue with the treatment.

The treatment was also expected to cause the Protected Party some short-term discomfort and distress, in turn limiting the Protected Party’s ability to eat snacks. The Court of Protection placed significant weight on the Protected Party’s ability to eat snacks as this was important to the Protected Party however the Court noted any impact on the Protected Party’s ability would be for a limited time only. Finally, the Court of Protection considered the risk to the Protected Party in the event he received no treatment. This could have resulted in the damage escalating and causing life-threatening conditions however that risk was again remote.

The Court of Protection concluded that the Protected Party should receive the treatment proposed by the NHS with a view to preserving the Protected Party’s teeth where possible however, if the preservation of the Protected Party’s teeth would be traumatic it should be avoided.

Comment

This case further demonstrates how the Court of Protection will consider the Protected Party’s best interests regarding the provision of treatment. The case facts confirm decisions will be case specific, with this case considering the eating of snacks a significant factor, something which is thought to be a normal daily activity for most others.