Report No. 196

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

(Sir Thomas Bingham MR, Waite and Peter Gibson LJJ) (14.1.1994)

S, a healthy adult, in June 1991, took a drug overdose which resulted in acute and extreme brain damage. Medical treatment was of no avail. Until June 1993, he was fed through a nasogastric tube as the only practicable way of feeding him and later by a gastronomy tube through the stomach wall. The gastronomy tube got removed due to his movement and a fresh operation to re-insert it was likely to result in his death according to the doctors. They felt he should be allowed to die a natural death.

The hospital moved the High Court as a matter of urgency for a declaration authorizing it not to replace the gastronomy tube. The judge granted the declaration arising in the patient's best interests. On appeal by the official solicitor, the Court of Appeal held that the judge was right and that the hospital need not replace or reinsert the tube.

Sir Thomas Bingham MR held that the question which the court had to determine, in an application for permission not to continue treatment to a PVS patient was to consider what was in the 'best interests' of the patient. Though the court had power to review the medical opinion and was not bound to accept it in all cases or circumstances placed before it did not warrant it, the court would be reluctant to place those treating the patient in a position of having to carry out treatment which they considered to be contrary to the patient's best interests unless the court had real doubt about the reliability, bona fides or correctness of the medical opinion in question. Airedale was applied.

It was further 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 for the official solicitor, as the representative of the patient, to explore the situation fully, to obtain independent medical opinion for himself and to ensure proper material is placed before 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. Re C: