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Report No. 196

(28) An NHS Hospital Trust v. S & others, (2003) EWHC 365 (Fam) (Dame Elizabeth Butler-Sloss P) (6 th March 2003)

S, aged 18, was born with a genetic condition, velo-cardiac facial syndrome, and was suffering from 'global development delay' and 'bilateral renal dysplasia'. He has been under haemo-dialysis since May 2000. He has severe learning disability with problems arising from limited understanding of medical treatment he is receiving. He is diagnosed as autistic. He suffers from epilepsy, a tendency to blood-clotting and has a moderate immuno-deficiency. His mental capacity has been assessed as that of a 5 or 6 year child. He clearly does not have the capacity to take decisions about his medical treatment.

The Hospital approached the Court seeking a declaration that the Hospital need not perform kidney-transplantations since that would not be in S's best interests and that S should not undergo peritoneal dialysis. Only haemo-dialysis could continue for the foreseeable future and if it no longer be provided, no other form of dialysis should be given except palliative care. The parents opposed the plea of the Hospital and wanted the kidney transplantation to go on. His mother offered to donate a kidney. The Official Solicitor, representing S, wanted all forms of dialysis should be considered and he reserved his views on suitability of kidney transplantation.

However, later, it was agreed by all that haemodialysis be given and if it could no longer be given, then peritoneal dialysis be given and that transplantation of kidney was not in his best interests. There still remained two areas of disagreement:

(1) There was a difference of opinion as to whether or in what circumstances a kidney transplantation would ever be suitable for S.

(2) There was strong disagreement over the possibility of giving S a different form of haemodialysis by the use of AV fistula.

After analyzing the medical evidence, and the legal principles as-

(1) to 'best interests: sanctity of life' as stated in Re B (A minor: Wardship: Medical Treatment) 1981 (1) WLR 1421 (CA) and by Lord Goff in Airedale 1993 AC 789,

(2) duty of medical profession, as stated by Lord Goff in Re F (mental patient: sterlisation) 1990 (2) AC 1; Simms v. Simms and PA vs. JA: 2002 (EWHC 2734),

(3) 'best interests: duty of Court': as explained in Re A (Male Sterilisation) 2000 (1) FLR 549) the Court proceeded to decide the issues.

Butler-Sloss P referred to what Thorpe LJ said in Re A (Male Sterlisation) 2000(1) FLR 549 (at p.560) as follows:

"There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal.

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 counter-balancing disbenefits 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."

Butler-Sloss P said she would add 'his enjoyment of life' as an additional factor to be weighed. After considering S's ability to cope with the treatment, the four options for treatment, namely, Haemodialysis via central catheter, peritoreal dialysis AV fistula in the arm and possible kidney transplantation in the futur.- (under separate headings.-, the learned Judge observed:

"(1) S cannot make his own decisions as to his future medical care since he does not have capacity to do so;

(2) I am satisfied that it is in his best interests to continue his present haemodialysis treatment;

(3) I consider that the possibility of an AV fistula should not be excluded after he has settled into the adult way of life;

(4) When haemodialysis is considered by the medical team caring for him (as) no longer to be effective, I agree with the medical evidence that he should move to peritoneal dialysis;

(5) The possibility of a kidney transplantation should not be excluded on non-medical grounds."



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