Judge rules man with learning difficulties should receive medical treatment

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