London Borough of Ealing v KS, LU, SK (by her litigation friend the Official Solicitor), MHAS and SR [2008] involved an application by a local authority for a declaration that SK lacked capacity to, amongst other things, marry and consent to sexual relationships.

Within the proceedings, it was brought to the court’s attention that she was also suffering from an ovarian cyst, which required examination/removal under a general anaesthetic. The NHS trust involved in her care had declined to become a party to the proceedings and did not provide evidence with regard to her clinical picture until the final hearing was under way. No formal representation was provided on behalf of the trust however the court declared that it was lawful and in SK’s best interests for the clinicians to undertake treatment for her cyst.

It is unusual for a declaration to be granted with regard to the lawfulness of medical treatment in a patient’s best interests where the trust who would carry out the procedure are not represented. We would not advise trusts to rely on local authorities to seek orders for medical treatment where the trust owes a duty of care to a patient who lacks capacity.