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In An NHS Hospital Trust v S (6 March 2003) the president of the family division of the high court had to decide the difficult question of the best interests of a young adult who suffered from learning difficulties and from autism.

The facts and the case

S’s specific problem which the court had to consider related to kidney failure and the treatment for it. He currently was treated by kidney dialysis, but the medical experts were concerned that this was a treatment with a limited viability of a matter of years, and that the alternative treatment would be far more invasive. The alternative treatments included a more invasive form of dialysis and possibly in the future a kidney transplant. The medical experts for the trust were of the view that as S would be unable to understand the need for such procedures, then the pain, distress and need to restrain him were factors which indicated it was not in his best interests for them to be carried out. S’s family disputed this approach and a large number of experts on both sides were called to provide the court with their views.

The court’s approach in best interests cases

The judge, Dame Elizabeth Butler-Sloss, commented that "the sanctity of life is a fundamental principle and there is a very strong presumption in favour of a course of action which will prolong life"; and she recalled that the principle is now enshrined in article 2 of the European Convention of Human Rights. The judge explained the role of the court in "best interests declaration" cases thus:

In cases where there is a disagreement between the family of an adult without the competence to make decisions about his future medical treatment and the clinicians who are caring for him and the issue is a potential life or death decision or serious irreversible surgery, the court may in the exercise of its inherent jurisdiction, grant declarations as to the lawfulness of the proposed medical or surgical treatment

She found that "best interests encompasses medical, emotional and all other welfare issues". Recalling the words of Lord Justice Thorpe in a previous case the judge found that the process by which the court had to evaluate the best interests of a person lacking capacity "is akin to a welfare appraisal" with the following features.

Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit. In the present case an instance would be the acquisition of foolproof contraception. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant. An obvious instance in this case would be the apprehension of risk and the discomfort inherent in the operation. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant."

Carrying out this balancing exercise the judge decided not to rule out more invasive treatment in the future as she did not agree that the adverse affect on S would be as serious as the trust’s experts claimed.

Comment:

Although some reports of the case have portrayed it as a case in which it was decided that a person with learning difficulties had just as much right to transplant surgery as a person with no such problems, this is not really an accurate portrayal of the issues involved. The medical staff were concerned more with the quality and enjoyment of life that S would have if he was subjected to invasive treatment which he did not understand and which was likely to cause him much distress. Wider evidence, however, convinced the judge that their view was not necessarily correct. The case was decided very much on its own facts, and in a different situation the contrary view could have been reached.

Community care professionals might like to note the range of matters the judge considered could be the subject of best interests declarations. There are certainly more applications being made by local authorities for declarations as to the services and accommodation which are in the best interests of a learning disabled person to receive, especially when faced with obstructive relatives reluctant to accept social services involvement.

Stephen Cragg

Doughty Street Chambers