Court of Protection judge approves young adult who lacks capacity being stem cell donor for mother

A young adult who lacks mental capacity can be used as a stem cell donor for a parent if this is also in the donor’s interest, the Court of Protection has ruled.

In A NHS Foundation Trust v MC [2020] EWCOP 33 Mr Justice Cohen said the case of an unnamed NHS trust and 18-year-old MC was the first of its kind.

He said the trust sought the court’s consent to harvest peripheral blood stem cells for MC’s mother who has chronic leukaemia and was unlikely to live more than a year without a stem cell transplant.

Medical reports said MC was unable to make decisions for herself to give informed consent.

It was though clear that MC lives at home with her parents and has a loving relationship.

The judge said: “I am told that this is the first time that an application for the extraction of bone marrow or stem cell donation by someone lacking capacity has come before the Court of Protection and the first time the Human Tissue Authority (HTA) has been involved in a case of this nature.”

It was clear that MC lacked capacity and so he had to consider whether it was in her best interests for her stem cells to be harvested for her mother, and decided it was given the benefits of a continued relationship with her mother if she were to live longer.

He concluded: “I agree with both counsel that it is overwhelmingly in MC's best interest to participate in the proposed programme and donate her stem cells for the benefit of her mother. It is in MC's best interests as much her mother’s.”

Cohen J said though that he wanted to express “some views about a matter that has troubled the Official Solicitor greatly”, not in the context of this case but more widely.

The judge said: "Apparently, there are about 65 individuals each year under the age of 18 for whom the HTA gives approval for this sort of procedure. It is not known how many of those individuals have difficulties with capacity in the way MC has. MC's case has come before the court because she is in law an adult in circumstances where there is no Lasting Power of Attorney or a Court Appointed Deputy who can give consent, hence the decision is to be taken by me.

"For others under the age of 18 there is, or was felt to be, something of a vacuum. On analysis that vacuum has been partially but not completely filled. The treating Trust holds no duty of care to the donor because its obligations are to its patient, the donee who will be the recipient of the stem cells. The HTA will check only to see if there is consent and no monetary payment (which is forbidden) or other pressure or coercion applied."

Mr Justice Cohen said that nowhere is there at the centre of what is being considered either by the treating Trust or the Human Tissue Authority, the best interests of the donor. "Ms Gollop for the Trust helpfully referred to me to the passage within the accredited assessor's report and it is right that there is a passage headed 'Best Interests' but Ms Dolan is also right to say that it is cursory. It may be that the view was taken that in this case there was an overwhelmingly obvious outcome."

The judge suggested that "there really should be a considered risk and benefit analysis by the accredited assessor. I am not criticising the accredited assessor in any way. This is the first application to be considered since the Mental Capacity Act 2005 came into operation. However, it could only be beneficial if a considered deliberation of the factors set out within s.4 of the Mental Capacity Act 2005 was performed in each case where the HTA is faced with an issue of capacity of the donee."

Mark Smulian