An NHS Hospital Trust v S & Ors [2003] EWHC 365 (Fam)

Best interests – medical treatment – declaratory relief – mental capacity

The Hospital Trust sought a declaration as to the future treatment and management of S, an 18-year-old autistic patient with severe learning difficulties and the mental capacity of a five or six-year-old child.

He had been admitted to the hospital for emergency treatment for acute renal failure and had been on haemodialysis ever since. The Trust had sought a declaration that a declaration, opposed by S’s parents, that it should be permitted not to perform a kidney transplant on S since it would not be in his best interests, given that it would be a highly distressing form of treatment which S could not cope with.  By closing submissions in the case, both parties agreed that, at that present time, a transplant was not in S’s best interests; and the outstanding areas of dispute were, whether or in what circumstances a kidney transplant would ever be suitable for S and whether there was a possibility of giving him a different and more invasive form of haemodialysis.

Underlying that question was the conflicting evidence before the court as to the extent to which S would:

(i)  be able to understand the purpose of any treatment or surgery;

(ii) be prepared for surgery;

(iii) be able to cope with surgery; and

(iv) be managed by the hospital staff without undue distress to him and without undue difficulty for the hospital staff.

The four options for treatment were: (a) haemodialysis via a central venous catheter (which was S’s current treatment); (b) peritoneal dialysis; (c) haemodialysis by use of an AV fistula (which would require surgery to create a channel of direct communication between an artery and a vein in the arm); and (d) a possible kidney transplantation in the future.

In reaching its decision, the court noted that it was clear from the agreed medical evidence that S was not competent to make decisions about his future treatment.

The sanctity of life was a fundamental principle, recognised by art 2 of the European Convention of Human Rights, and there was a very strong presumption in favour of a course of action which would prolong life. Referring to the decision in Airedale NHS Trust v Bland, the court also noted that that principle, whilst fundamental, was not absolute. There was no absolute rule that a patient’s life must be prolonged by such treatment or care, if available, regardless of the circumstances. Those considerations were of particular relevance to the facts of the present case where the existing and proposed treatment options were crucial in order to sustain S’s life.

The judge went on to consider the court’s duty when there was a disagreement between the family of an adult without competence to make decisions about his future medical treatment and the clinicians who were caring for him, and the issue was a potential life and death decision or irreversible surgery. She concluded that, when considering the best interests of a patient, it was the duty of the court to assess the advantages and disadvantages of the various treatment options, the viability of each such option and the likely effect each would have on the patient’s best interests and his enjoyment of life. On the facts of the present case, in particular, any likely benefit of treatment had to be balanced and considered in the light of any additional suffering the treatment option would entail.

In order to come to a conclusion as to the treatment which it would be appropriate for S to receive in his best interests, it was necessary to form a view as to the degree of understanding that S had and his ability to learn about his treatment. The judge was of the opinion that S’s lack of verbal communication skills did not appear to be a clear indicator of his overall cognitive skills.  From the evidence given by an education psychologist, who had observed S in school and in class, S’s current head teacher and an adolescent psychiatrist, the judge formed the clear view that if S were to be given specialist help and the appropriate aides, he would have somewhat more ability to learn than that which the Hospital Trust has been able to accept.  It was further clear that that help could be provided to S and that there were suitable people to call upon who would be available in the area to carry out the necessary procedures.  A suitable care plan could be drawn up to work out the best way forward to meet S’s medical needs.

The judge concluded that in light of the agreement of the medical experts and of the Official Solicitor representing S, it was in S’s best interests for him to continue with the haemodialysis treatment. The possibility of a kidney transplant was not to be ruled out on non-medical grounds; neither was the possibility of an AV fistula to be excluded once S had settled into the adult way of life.

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