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Report No. 196

Frenchay Healthcare NHS Trust v. S: 1994 (2) All ER 403 (CA)

In this case, decided in 1994, Sir Thomas Bingham MR held that where a hospital seeks to discontinue treatment to a PVS, as a general rule, the hospital must apply to the Court and obtain a declaration that it was proper to do so and such an application should be preceded by a full investigation with an opportunity to the Official Solicitor, as the representative of the patient, to explore the situation fully, to obtain independent medical opinion for himself and to ensure that proper material is placed before the Court.

Nevertheless, emergency situations will arise in which an application to the Court is not possible or where, although an application to Court is possible, it will not be possible to present the application in the same leisurely way as in the case where there is no pressure of time.

In 1996, in Re S (Hospital Patient: Courts Jurisdiction) 1996 Jan 1, Sir Thomas Bingham MR said (p.18) that 'In cases of controversy and cases involving momentous and irrevocable decisions, the Courts have treated as justiciable any genuine question as to what the best interests of a patient require or justify.

In making these decisions, the Courts have recognized the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable, they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; and they have recognized the desirability, in the last resort, of decisions being made by an impartial, independent tribunal'.

In 2003, in NHS Trust v. D: 2003 EWHC 2793, Coleridge J observed that where there is a doubt about the capacity or best interest, an application should be made to the Court. In particular and without limiting the generality of the proposition, the following circumstances would ordinarily warrant making an application (in pregnancy matters):

(ii) where there is a dispute as to capacity, or where there is a realistic prospect that the patient will regain capacity, following a response to treatment, within the period of her pregnancy or shortly thereafter;

(iii) where there is lack of unanimity amongst the medical professionals as to the best interests of the patient;

(iv) where the procedures under section 1 of the Abortion Act, 1967 have not been followed (i.e. where two medical practitioners have not provided a certificate);

(v) where the patient, member of her immediate family or the foetus' father have opposed or expressed views inconsistent with a termination of the pregnancy; or

(vi) where there are other exceptional circumstances (including where the termination may be the patient's last chance to bear a child.

Munby J in his judgment in R (Burke) v. The GMC 2004 EWHC 1879 (Admin.- referred to five situations where where it is proposed to withhold or withdraw ANH, that Court approval must be obtained:

(i) where there is any doubt or disagreement as to the capacity (competence) of the patient; or

(ii) where there is lack of unanimity amongst the attending medical professions as to either

(a) the patient's condition or prognosis; or

(b) the patient's best interests; or

(c) the likely outcome of ANH being either withheld or withdrawn; or

(d) otherwise as to whether or not ANH should be withheld or withdrawn; or

(iii) where there is evidence that the patient when competent would have wanted ANH to continue in the relevant circumstances; or

(iv) where there is evidence that the patient (even if a child or incompetent) resists or disputes the proposed withdrawal of ANH; or

(v) where persons having a reasonable claim to have their views or evidence taken into account (such as parents or close relatives, partners, close friends, long term careers) assert that withdrawal of ANH is contrary to the parents' wishes or not in the patient's best interest."

But, the Court of Appeal in GMCU vs. Burke: 2005(EWCA) (civ) 1003 (CA) did not agree that in each of these cases the parties must resort to a declaration before a Court of Law. In practice, this is not feasible because if these directives are followed at least 10 cases have to go to Court every day, on an average, in England. The Court of Appeal stated:

"We do not consider that the Judge is right to postulate that there is a legal duty to obtain Court approval to the withdrawal of ANH in the circumstances that he identifies"

Summarising the judgment, it will be seen that while in Airedale, the House of Lords permitted parties to resort to a declaration only as a matter of "good medical practice", till a body of "experience and practice" was built up. Plainly there would be occasions when it would be advisable for a doctor to seek the Court's approval before withdrawing ANH in other circumstances, but there was, according to the Court of Appeal, justification in postulating that the doctor was under a legal duty to do so, in all the above five contingencies. Munby J had relied on Coleridge in D v. NHS Trust 2003 EWHC (Fam) 2793.

The Court of Appeal distinguished Coleridge J's judgment stating that that was a case of pregnancy of an incompetent adult where, because the legitimacy of such treatment was in doubt, it was 'necessary' to seek authorization from Court. The view of Coleridge J does not transform the requirement to seek Court approval from a matter of 'good practice' into a legal requirement in all the above five situations referred to by Munby J.

Also distinguishing the decision of the European Court in Glass v. UK: 2004 (1) FLR 1019: 2004 Lloyds Rep Med 76, Lord Phillips in the Court of Appeal said:

"The true position is that the Court does not authorize treatment that would otherwise be unlawful. The court makes a declaration as to whether or not proposed treatment, or withdrawal of treatment, will be lawful. Good practice may require medical practitioners to seek such a declaration where the legality of the proposed treatment is in doubt. This is not, however, something that they are required to do as a matter of law. Declaration 6 made by Munby J misstated the law."

In NHS Trust vs. D: 2003 EWHC 2793, it was held that "where the issues of capacity and best interests are clear and beyond doubt, an application to the Court is not necessary."

From the above, the circumstances under which doctors or others can move a civil court for declaration are fairly clear. It is not in every case that it is necessary where there is a conflict of views etc. as stated by Munby J. The Court can be approached as a matter of 'good medical practice' to initially build up healthy precedents till a body of 'experience and practice' is built up.

It is necessary to provide in the proposed Bill that patients, parents, hospitals or doctors can approach the Courts either on the question of withholding or withdrawing artificial medical treatment or starting or for continuance of the said treatment.

(13) Confidentiality:

For medical patients, privacy rights are quite important and, therefore, it is essential, in the matter of serious cases involving life and death related issues which come before the Courts seeking declaratory remedies, that utmost secrecy has to be maintained with regard to the names of the patients, their parents, the hospitals, opinions of experts or doctors, in the judgments.

Even where the parties do not move the Courts, the media may publish the legal principles decided or directions given but cannot disclose facts which will identify the patients, parents, relatives, doctors, experts, or hospitals.



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