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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> NHS Trust v A & Anor [2005] EWCA Civ 1145 (01 September 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/1145.html Cite as: [2005] EWCA Civ 1145 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE KIRKWOOD)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE TUCKEY
____________________
AN NHS TRUST | Claimant/First Respondent | |
-v- | ||
(1) A | ||
(An Adult, represented by the Official Solicitor as Litigation Friend) | First Defendant/Second Respondent | |
(2) SA | Second Defendant/Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS DEBRA POWELL (instructed by Hill Dickinson, Liverpool L2 9XL) appeared on behalf of the First Respondent/Claimant
MR M MYLONAS (instructed by Official Solicitor, 81 Chancery Lane, London WC2A 1DD) appeared on behalf of the Second Respondent/Second Defendant by the Official Solicitor
____________________
Crown Copyright ©
"1. Mr A lacks capacity to consent to continued life-sustaining treatment measures.
2. It is not in the existing circumstances in the best interests of Mr A to be given life-sustaining medical treatment measures (including ventilation ... and renal support by haemofiltration and/or renal dialysis) and such measures may lawfully be discontinued.
3. It is in Mr A's best interests to be given such treatment and nursing care (but not including resuscitation in the event of his suffering a cardiac and/or respiratory arrest) whether at hospital or elsewhere under medical supervision as may be appropriate to ensure he retains the greatest dignity until such time as his life comes to an end."
I should say that I have excluded the words "via tracheostomy" when it followed ventilation, that, as I understand it, having been put there by mistake.
"12. Mr [A] would need to remain attached to his mechanical ventilator permanently and his haemofilter for extended periods (days at a time). He would be required to remain in an intensive care environment with regular disruptions to sleep patterns due to interventions to him and other patients. His ability to communicate would be severely restricted. His clinical course would be one of repeated infections due to the numerous invasive lines required to manage his renal failure and ventilation. This would lead to a steady inexorable physiological decline requiring increasing levels of invasive support. We would require to undertake regular invasive line changes to enable his treatment to continue.
13. He would need to continue to be fed through a tube in his nose.
14. Ultimately these processes would result in him dying.
Prognosis without treatment
15. Upon stopping artificial ventilation Mr [A's] carbon dioxide levels would rise. This would result in him becoming increasingly drowsy and then unconsciousness would ensue, followed by death due either to his breathing stopping or his heart stopping. This process would be expected to take less than a day.
16. With Mr [A's] renal support discontinued but other support continuing (including ventilation) he would be subjected to a rise in levels of waste metabolites, water and other blood components. Some of these will produce a slow decrease in his conscious level over several days but some may produce a sudden cessation of cardiac function. Death would ensue after several days.
Best Interests of the Patient
17. We have attempted to establish the wishes of Mr [A]. We have been unable to obtain an indication that he understands what is happening and he is unable to give his opinion. We have approached the relatives, who have been kept informed of his treatment and progress. We have been unable to get consistent agreement with our management plans.
18. The medical and nursing staff think that it is in the best interests of the patient to withdraw care. The treatments currently being provided for Mr [A] will not change the outcome of his illnesses. If the treatments are continued he will be subjected to psychological and physical distress.
19. At present, Mr [A] struggles and provides resistance to medical and nursing staff who try and insert multiple lines and provide treatment. For example, the insertion of a naso gastric tube, is uncomfortable and painful. The insertion of a naso gastric tube is the method through which nutrition can be provided to Mr [A]. Mr [A] also pulls lines out that need to be re-sited, thereby causing further distress and pain.
20. The clinical and nursing team strongly feel that the continuation of medical treatment, such as the insertion of lines, and naso gastric tubes required to artificially prolong Mr [A's] life is an assault upon him.
21. We would aim to provide Mr [A] with an opportunity to be with his family, the ability to try to speak and to have freedom from his multiple lines and encumbrances. We would like Mr [A] to have a natural and dignified death."
"It is my opinion, due to the severe and chronic nature of Mr [A's] underlying disease, that there is no realistic expectation of improvement in his condition. Indeed, the current treatment he is receiving would seem only to be delaying his death. To continue current treatment would, in my opinion, not only be futile, but also result in Mr [A] being subjected to invasive, painful and, at times, undignified interventions with little hope of these leading to his recovery. I would suggest the correct course of action would be to cease the current treatments and allow Mr [A] to die comfortably and with as much dignity as his debilitated state will allow, with the appropriate palliative care."
"Based upon my discussion with Mr [A], what I have been able to understand from his inaudible words, actions and gestures and nodding of his head, is that:
(a) He wants to be allowed to go home.
(b) He believes that he is able to go home without any problems.
(c) He failed to either understand or accept that he is so critically ill that he most probably would not be able to arrive at his home.
(d) He very clearly understands that he suffers from serious problems with his respiration/breathing, heart and kidneys and that they are not going to get better.
(e) He made it quite clear that he does not think that the treatment being provided had been of any benefit to him and has not made him any better. He did say twice, through nodding his head and hand gestures, that he would like his doctors or myself to take all the tubes off him.
(f) However, Mr [A] refused to answer, every time I asked, would he like the doctors to:
(i) stop his treatment, or
(ii) continue his treatment.
I do not think there was a language barrier between us because I firmly believe that Mr [A] understood what I was saying and he gave no indication at all at any point that he was unable to understand me. However, it is very unfortunate that he was not able to communicate properly because of his tracheotomy."
His conclusion was that he did not have the capacity to consent or otherwise to treatment.
"(a) The family are interested in these proceedings and would wish to be joined as a Respondent through their brother, [SA].
(b) The views on this matter of [SA] are identical to those of all of the other family members referred to and identified by me above.
(c) [SA] and his family have reservations about the medical views expressed that Mr [A] lacks capacity. Whilst the family accept and appreciate that 'capacity' is a legal test, from their dealings with Mr [A] at Hospital, they are all of the view that Mr [A] is capable of understanding what is going on around him and of communicating with family members, both verbally and using gestures.
(d) The family have concerns about the care and treatment provided to Mr [A] since his admission to the [hospital]. They particularly note the fact that since his admission Mr [A] has contracted MRSA.
(e) Mr [SA] and his family do not agree or consent to the discontinuance of life-sustaining measures currently being given to Mr [A] because:
• All of the family still believe that there is at least some hope of improvement in Mr [A].
• None of the family believe that Mr [A] is currently suffering any pain. (This is based on their observations of and dealings with Mr [A] in hospital).
• The family are all practising Muslims. The family have taken advice from at least one Imam, (a religious scholar). He has advised that discontinuing Mr [A's] current treatment regime would be contrary to the Islamic religious faith and belief system.
• Finally, all of the family believe that if Mr [A] knew and appreciated the Applicant's proposed course of action he also would not consent. This is based on the family's discussions with Mr [A] in Hospital and their own knowledge and understanding of Mr [A's] religious and ethical beliefs before he took so seriously ill."
"Contrary to expectation, Mr A did not die shortly after the removal of ventilation support. Instead Mr A was able to breathe without the assistance of artificial ventilation and was still alive over 24 hours later. In these circumstances Mr SA made an application to the court for a declaration that it was in Mr A's best interests to receive nutrition, hydration and haemofiltration. The Trust agreed without dispute that Mr A should receive nutrition and hydration and that he should be provided with an oxygen mask but not ventilation support."
There was to be a hearing on 18th August 2005. That was adjourned briefly to allow the Official Solicitor and counsel for the Trust and for Mr SA to speak to Dr B by phone. Following the telephone conference with Dr B which lasted an hour and a half, the hearing was resumed and a report on the conference was given to the court. The advice of Dr B was that the reinsertion of haemofiltration on its own would not be sufficient to prevent Mr A's death unless it was accompanied by other support treatment such as ventilation and the active use of resuscitative techniques. Although Dr B had grave reservations about the reintroduction of haemofiltration and other support, he did advise that on balance it would probably extend Mr A's life, possibly to the extent that it would ensure that he was still alive by the date of the full hearing on this matter on 25th August. In the light of the submissions made and the report given of Dr B's assessment, the judge, who was Kirkwood J, with considerable hesitation made an order in the terms sought by Mr SA.
"9. In order to continue to provide haemofiltration and life sustaining measures the treating clinical team will need to put in place the following:
a. Mr A would need to remain attached to his mechanical ventilator permanently. A tracheostomy would have to be re-fashioned, probably in theatre. Repeated suction clearance of secretions would occur. Mr A would be sedated and analgesia delivered for him to tolerate these events and stop him from pulling the tracheostomy out.
b. Haemofiltration will be required for extended periods (days at a time). Large bore cannula will be placed in the groin or neck. Mr A will be sedated during the procedure of insertion and haemofiltration for comfort and to prevent him from pulling the lines out.
c. The provision of sedation to a patient with multi organ failure is particularly dangerous and there is a possibility that it could precipitate death through inactivity, postural pneumonia and venous thrombosis up to cardiac arrest for which invasive and intensive resuscitation may not be successful.
d. Mr A would be required to remain in an intensive care environment with regular disruptions to sleep patterns and discomfort due to interventions to him including therapeutic manoeuvres, cleaning of bodily function and events happening to other acutely ill patients. Staff on the Medical Ward are highly trained and experienced in caring for patients on a palliative care pathway in a more appropriate atmosphere and environment.
e. Mr A's clinical course would be one of repeated infections due to artificial ventilation and the numerous invasive lines, (intravenous catheters and cannula for example) required to manage his renal failure. Mr A currently has features suggestive of sepsis of the respiratory tract. The insertion of lines, for example for haemofiltration or to measure the biochemical levels in his blood, would cause pain and discomfort. At present, Mr A struggles and provides resistance to medical and nursing staff who try to insert the lines and provide treatment. For example, Mr A has a tendency to pull out the nasogastric tube which then needs to be re-sited. This is happening up to 3 times a day causing further distress and pain.
f. Mr A told Dr [L], Consultant Psychiatrist in Old Age, who also spoke Mr A's native language, that he wanted the doctors to remove the tubes and lines ...
g. Continued active treatment would lead to a steady inexorable physiological decline requiring increasing levels of futile and invasive support.
h. We would need to undertake regular invasive line changes that would cause pain and discomfort to enable his treatment to continue.
i. Mr A needs to be continue to be fed through a tube in his nose. Mr A removes the naso gastric tube regularly (over the evening of 17th and 18th August, Mr A pulled the tube out twice as it causes discomfort and needed to be re-sited). The insertion of a naso gastric tube is uncomfortable but is the best method through which nutrition can be provided to Mr A.
10. All of the above processes of replacing lines and tubed will cause pain and/or discomfort."
"The medical and nursing staff believe that it is in the best interests of the patient to withdraw active treatment and move to a regime of palliative care. The invasive treatments currently being provided for Mr A will not change the outcome of his illness.
12. The clinical and nursing team strongly feel that the continuation of futile medical treatment, such as the insertion of lines, and naso gastric tubes required to artificially prolong Mr A's life is an assault upon him.
13. In providing palliative care, the Trust would aim to provide Mr A with an opportunity to be with his family, the ability to try to speak and to have freedom from his multiple lines and encumbrances. We would like Mr A to have a natural, pain free and dignified death."
"I did not attempt to speak to, or examine, Mr [A], since he was sedated and because I did not wish to compromise hygiene care in view of MRSA colonisation. I did investigate the intensively monitored physiological parameters and the multitudinous drug and fluid infusions in progress."
"During the period of withdrawal, Mr [A's] general condition deteriorated significantly. When therapy was re-introduced the prospects for its success were, in my opinion, greatly reduced. There was now significant cardiovascular organ failure, renal failure, respiratory failure, metabolic failure, early central nervous system failure and sepsis. Even in the best of therapeutic circles, major multi-organ failure of that degree statistically indicates an in-CCU mortality rate increased to around 70%. Thus, though Mr [A] appeared to be stable when I saw him on 21/8/05, my opinion is that he has a less than 30% chance of leaving CCU - any CCU - alive."
"Were Mr [A] to be one of the lucky 30% of survivors, he would not leave hospital as fit as before 1/7/05. First, his left ventricular function has deteriorated significantly and he may well now be subject to paroxysmal atrial fibrillation with the attendant risks of embolisation and acute circulatory inadequacy. Second, his renal function is now end-stage, so he would be totally dialysis dependent. Note in this context that the local Dialysis Unit has already declared that medical co-morbidities would exclude him from their dialysis programme. Third, he could well be left with residual respiratory dysfunction. In my opinion, therefore, overall life expectancy would be greatly reduced.
Quality of life is, of course, a very individual concept, differing between individuals, families, societies and faiths. From a strictly medical point of view, Mr [A] would not enjoy the same quality of life as hitherto for the reasons given for reduced life expectancy. Whether or not he would find that reduced quality acceptable is beyond our ken. His family is plainly of the belief that, given their family's personality, he WOULD continue to enjoy life, albeit on a more restricted basis. I respect that belief."
"18. I of course accept that whatever now happens to my father is to be determined by the Judge on Thursday. I believe that my father is a fighter. I do not believe that my father would ever want him or his family to give up or to stop trying if there was any possibility that his life would or could be prolonged. My family and I gave their consent to the ventilator being switched off last Tuesday because we were led to believe at that time that there was absolutely no hope for my father. Clearly that was not the case. My father's spirit has shone through.
19. I do not believe that it would be right from a moral and religious point of view to stop my father receiving appropriate treatment, food and hydration. I believe that my father is entitled to whatever treatment is necessary to sustain his life. I believe that this is what my father would want if he was able to speak for himself."
"At the end of the day, I and the rest of the family do not want my father to suffer and die in pain. Despite this, however, I know that my father would want to fight for as long as he can during this final period of his life. I am pleased that the family, since Thursday, have been able to communicate further with my father. I know that that is what my father would want if he was able to speak now."
"6. Given the extent of major organ dysfunction affecting respiratory, cardiac, renal, hepatic and haemopoietic systems with no further treatment options that can re-establish satisfactory and sustainable primary function, it is impossible to countenance recovery to the point where the patient is sustainably free from invasive multi-system monitoring, support and interventions. It is inevitable furthermore that despite this process, death will occur and accepting as above that the timescale for survival is less relevant than the quality of life over that timeframe, one cannot realistically anticipate survival beyond six months, even with provision of full active support.
7. Even from this position it may be argued that survival over that timeframe may be meaningful for the individual involved. This would have to incorporate an understanding of the rationale for, and the benefits of, interventions of a medical, nursing and allied (e.g. physiotherapy) nature, that were either uncomfortable, distressing, and invasion of privacy or possibly all of these. The potential for this individual to regain capacity is clearly integral to such a consideration. Given that the patient did not demonstrate meaningful attempts at communication with the evaluating psychiatrist Dr [L], despite the absence of a language barrier, and this lack of capacity was not driven by any obvious reversible gross biochemical derangement, hypoxia, significant sepsis, or inappropriate sedative strategy, one cannot easily anticipate a return of capacity. It is possible that the currently observed problems reflects a contribution from cerebral ischaemia, noting the history of transient ischaemic attacks, which would clearly add an additional dimension to the already significant multi-system pathology. It is accepted however that although the patient currently lacks capacity, he is clearly sentient and it is a consistent observation of all disciplines of attendant staff, consolidated by my own assessment, that his response to interventions goes beyond a simple reflex to noxious stimulation. Mr [A] demonstrates a consistent purposeful effort in detaching or removing medical devices and resisting medical interventions. It would be difficult to interpret these responses as any other than a reflection of discomfort and distress, if not actually a gesture expressing a wish to be free from such intervention.
8. One could conclude from this evaluation, majored on relatively objective clinical measures of where this patient's 'best interests' lie, namely;
1. Can we entertain survival from this severe, complex, acute-on-chronic illness?
2. Can we entertain survival free from major medical interventions?
3. Can we entertain survival with restoration of capacity and free from discomfort and distress?
to which the reply is an increasingly robust negative, that care should be directed towards freedom from that discomfort and distress rather than perpetuation of these through active support.
The requirement for the attendant medical staff to embark on resuscitation manoeuvres, including external cardiac compression and administration of electrical shocks, to comply with the directive from the Court on the 18th of August to re-establish all active support, consolidates my opinion on all of the above three aspects."
"A week ago my opinion was founded on a prediction. From what I understand now, re-establishing the treatment regime has confirmed my views: the predicted complications occurred. My opinion has been consolidated by the response of the patient. Mr A simply doesn't have the physiological reserves to sustain his life any more, without aid. Therefore he is not going to regain independence of the mechanical and/or chemical support, or the haemofiltration - mechanical respiratory support through ventilation, cardiologically through chemical support or renal, through haemofiltration."
"Mr A will continue to require ventilatory support for as long as the need for ongoing dialysis remains. He requires analgesia and sedation not just for humanitarian purposes but to enable the support to be provided. He needs to be 'hooked up'. Ventilatory support will be ongoing and invasive. There is no prospect of reducing the degree of intervention. It will have an inevitable impact on Mr A's reserves."
"When I examined Mr A I observed a level of background agitation about medical devices including pulling out the tracheostomy, naso-gastric tube and cannulae. When I embarked on my physical examination, Mr A's agitation increased and he used his limbs to push me away. He actively resisted and pushed me away and grimaced. This was not just a reflex response isolated from any concept of suffering. It was my interpretation he was uncomfortable, agitated, distressed. In my view, it was a display of discomfort and distress. Even during a simple examination he would push my hands away. He was even trying to push my hand away and the stethoscope away when I listened to his chest. I interpreted this to be active resistance."
"I see no realistic prospects of improvement in capacity. I do not believe there is a chance of improvement through the removal of sedation to allow Mr A to communicate with his family. On this basis I see no realistic prospect of return to capacity, then given that a return to capacity is one of the requirements that should be met when deciding whether or not to provide ongoing treatment, it is unrealistic to expect the Hospital to provide further support and in particular, renal and ventilatory support. It is unrealistic to expect him to achieve independence from renal and respiratory assistance, which are those causing him most distress. I cannot foresee any reduction in the discomfort and distress they cause. It is impossible for him to escape from the loop of sedation that is necessary to enable him to tolerate the interventions necessary to keep him alive."
"Dr R has introduced figures produced by research literature looking at a broad population for patients with simple conditions such as a young patient in an RTA or pneumonia, not as in this case, irreversible multi organ failure. I have approached prognosis as set out in my reports and in my evidence by assessing the individual patient. I have not given Mr A a chance of survival. Mortality from this episode in this individual must be 100%. It's the timing, location and style of death that is subject to variable.
This patient will die as a consequences of his illnesses. He has severe organ dysfunction in most systems in his body. He is not a young person with a good background level of health. Dr R's use of and reference to mortality and critical illness research and figures is possibly less than helpful. Mr A's critical illness is founded on the background of severe organ failure. I would approach prognosis differently to Dr R."
"My view firmly is that there is no chance, absolutely and definitely, of long term survival, even if Mr A was kept alive by dependence on support mechanisms."
"There is no realistic chance of meaningful survival. Even then such a statement is a simplification. It is not just an issue about survival. The question is what are the chances of being able to continue any process of care that has any possibility of breaking the current cycle of discomfort and distress with Mr A?"
"The issue has to be balanced with whether or not we think there is a realistic chance of survival in the individual. Is there a realistic chance that the individual has the possibility of surviving free from intubation. Survival has to be balanced with quality of life. We always have to balance these two considerations. Clearly we should pursue longer term goals if there is a realistic chance of hitting the indicator and being free from interventions and gaining some pleasure from life. Now, however, as far as Mr A is concerned, it is just about survival. At most he will survive 6 months. He will not regain capacity because of the organ damage he has sustained which is not capable of improvement and will not regain independence from invasive intervention."
"He did have heart disease, no doubt. He did have some cellular vascular disease in the form of transient ischemic attack. He did have renal impairment. I would not describe it as renal failure I would describe it as renal impairment, because he was not actually requiring regular dialysis, and despite these abnormalities he led a very active life both physically and mentally. So he was for his age I think a remarkably fit man in general terms and coped extremely well, so we have to take that as our basis. This incident has knocked him back, there is no question of that, and it has I think converted his renal impairment into renal failure, and I think that if he works to survive this failure in intensive care he would probably require regular dialysis just to maintain normal renal haemostasis.
His heart performance has marginally - and I use that word advisedly - deteriorated in that when he had an echocardiogram he had mild left ventricular dysfunction. When he had a subsequent one on 12 August which was vetted by a cardiologist he had moderate left ventricular dysfunction, so there was a marginal deterioration in his cardiac production. However there are many, many people who live for years with moderate less than acute dysfunction, provided they get proper medical treatment - either their blood pressure for instance is kept under control, and he is on the antihypertensive drug ..., and he is on GTN, which is ... nitrate which will keep his circulation open and keep his tissues ... So he would need to take those ... for the rest of his life."
"There is a remote possibility, and I cannot be more accurate than that at the moment, a remote possibility that he will get some residual respiratory dysfunction if he recovers. He may get some exercise ... where he ... He may even require intermittent supportive ventilation. There is now an established system called Home Ventilation System which is designed for people who can pass ... during the course of the day with adequate breathing but at night there may be a ..., so there is a system now with regards to home ventilation for as many of the 24 hours as he requires."
He accepted that there would be neurological impairment and that it would be a matter of degree.
"Well, it is a circumstance which none of us can predict with any accuracy, so it has to rely on reliable statistics - not to make a decision but just as a very, very broad guideline as to what happens in the majority of cases. So I took this paper from a very well-respected peer journal, Intensive Care, just as an indicator of what his current possibilities are for getting to the point of being fit enough to leave ITU. I have to say that these are broad generalisations, but the actual figure in the paper I refer to is that he had possibly a 33 per cent chance of recovering sufficiently to leave ITU. I say in my report that in my personal opinion in this particular circumstance, I would say it is probably less than 30 per cent, but it is a question of whether anything less than 30 per cent is acceptable to the patient or to his relatives."
It was at that stage that the judge intervened to say that if he thought there was a 30% chance, then he would not be granting a declaration. Indeed, if the trust thought there was a 30% chance, they would not be seeking the declaration and that was where the critical issue was.
"I personally think - I quoted that figure because that was the figure that was in the paper in the Intensive Care journal. I personally think, and I say in my report, his prospect of getting out of ITU alive are less than 30 per cent. I would not like to put a figure on it, but I think they are less than 30 per cent - probably significantly less than 30 per cent. But the actual figure that the relatives and professionals would accept is a judgment for them to make, not for me to make. I can only say that I do not think Mr A has more than, say, a 20 per cent to 25 per cent chance of getting out of ITU alive. If you think that is an unacceptable possibility then that is your judgment. My definition of him getting out of ITU alive is that he would be capable of maintaining his basic physiological functions. In sum, without invasive support he would need to be on ... he would need to be on cardiac support with drugs, and he would need to be on dialysis. Beyond that I would be anticipating him being able to lead ..."
and then the recording fades.
"I think the situation should be reviewed by his caring clinicians and the relatives on a very regular basis, and they then make an assessment of whether he is not moving at all, whether he is deteriorating, or whether he is actually showing signs of getting better, and the judgment about whether or not he was deteriorating would be based on ... Plainly if he were very ill there would be a strong indication of the possibility of ... If he were not getting worse ... or if there were signs of him getting better, then the indications ..."
and again the recording fades out. That concluded his evidence.
"(1) cases in which, having regard to all the circumstances (including, for example, the intrusive nature of the treatment, the hazards involved in it, and the very poor quality of the life which may be prolonged for the patient if the treatment is successful), it may be judged not to be in the best interests of the patient to initiate or continue life-prolonging treatment, and (2) cases such as the present in which, so far as the living patient is concerned, that treatment is of no benefit to him because he is totally unconscious and there is no prospect of any improvement in his condition."
"I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child."
"In a case where a responsible clinical decision is made to withhold treatment, on the grounds that it is not in the patient's best interests, and that clinical decision is made in accordance with a respectable body of medical opinion, the state's positive obligation under article 2 is, in my view, discharged."
"This brings me face to face with the problem of formulating the critical equation. In truth it cannot be done with mathematical or any precision. There is without doubt a very strong presumption in favour of a course of action which will prolong life, but, even excepting the 'cabbage' case to which special considerations may well apply, it is not irrebuttable. As this court recognised in In re B., account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment itself. In re B. was probably not a borderline case and I do not think that we are bound to, or should, treat Templeman LJ's use of the words 'demonstrably so awful' or Dunn LJ's use of the word 'intolerable' as providing a quasi-statutory yardstick.
For my part I prefer the formulation of Justice Asch ... We know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life. As explained, this formulation takes account of this and also underlines the need to avoid looking at the problem from the point of view of the decider, but instead requires him to look at it from the assumed point of view of the patient. This gives effect, as it should, to the fact that even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's, and mankind's, desire to survive."
"Mr Munby argued that, before deciding against treatment, the court would have to be certain that the circumstances of the child's future would comply with the extreme requirements to justify that decision. Certainty as to the future is beyond human judgment. The courts have not, even in the trial of capital offences, required certainty of proof. But, clearly, the court must be satisfied to a high degree of probability."
"I would suggest that the starting-point of any medical decision would be the principles enunciated in the Bolam test and that a doctor ought not to make any decision about a patient that does not fall within the broad spectrum of the Bolam test. The duty to act in accordance with responsible and competent professional opinion may give the doctor more than one option since there may well be more than one acceptable medical opinion. When the doctor moves on to consider the best interests of the patient he/she has to choose the best option, often from a range of options. As Mr Munby has pointed out, the best interests test ought, logically, to give only one answer.
In these difficult cases where the medical profession seeks a declaration as to lawfulness of the proposed treatment, the judge, not the doctor, has the duty to decide whether such treatment is in the best interests of the patient. The judicial decision ought to provide the best answer not a range of alternative answers. There may, of course, be situations where the answer may not be obvious and alternatives may have to be tried. It is still at any one point the best option of that moment which should be chosen.
I recognise that there is distinguished judicial dicta to the contrary in the speech of Lord Browne-Wilkinson in Airedale NHS Trust v Bland [1993] AC 789, 884, [1993] 1 FLR 1026, 1054-1055. The passage in his speech was not, however, followed by the other members of the House. Hale J in Re S (Hospital Patient: Court's Jurisdiction) [1995] Fam 26, 32, [1995] 1 FLR 302, 308 followed the same approach. She said that, in accordance with the Bolam test, it followed that a number of different courses may be lawful in any particular case. That may be so, but I do not read Re F [1990] 2 AC 1 upon which she relied, as relieving the judge who is deciding the best interests of the patient from making a choice between the available options. I respectfully disagree with Lord Browne-Wilkinson and Hale J. I have had the opportunity to read Thorpe LJ's judgment in draft and I agree with his analysis. As I have set out earlier in this judgment, the principle of best interests as applied by the court extends beyond the considerations set out in the Bolam case. The judicial decision will incorporate broader ethical, social, moral and welfare considerations. ."
"I would therefore accept Mr Munby's submission that in determining the welfare of the patient, the Bolam test is applied only at the outset to ensure that the treatment proposed is recognised as proper by a responsible body of medical opinion skilled in delivering that particular treatment. That may be a necessary check in an exercise where it would be impossible to be over-scrupulous. But I find it hard to imagine in practice a disputed trial before a judge of the division in which a responsible party proposed for an incompetent patient a treatment that did not satisfy the Bolam test. In practice, the dispute will generally require the court to choose between two or more possible treatments both or all of which comfortably pass the Bolam test. As most of us know from experience, a patient contemplating treatment for a physical condition or illness is often offered a range of alternatives with counter-balancing advantages and disadvantages. One of the most important services provided by a consultant is to explain the available alternatives to the patient, particularly concentrating on those features of advantage and disadvantage most relevant to his needs and circumstances. In a developing relationship of confidence the consultant then guides the patient to make the choice that best suits his circumstances and personality. It is precisely because the patient is prevented by disability from that exchange that the judge must in certain circumstances either exercise the choice between alternative available treatments or perhaps refuse any form of treatment. In deciding what is best for the disabled patient the judge must have regard to the patient's welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed, it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination. In my opinion, the Bolam case has no contribution to make to this second and determinative stage of the judicial decision.
ORDER: Application for permission to appeal granted; appeal dismissed; the Legal Services Commission to pay the Respondents' costs, to be the subject of a detailed assessment.