NHS Trust v A & Anor

LORD JUSTICE WALLER: On 26th August, last Friday, Kirkwood J granted declarations in favour of the claimant, an NHS Trust, in the following terms:

The judge granted a stay pending an application for permission to appeal to this court. That application came on as a matter of urgency before Laws LJ on the same day, 26th August. He adjourned it until 2.00pm last Tuesday, in the hope that a transcript of the judge's judgment would be available. He further directed that if permission were granted the appeal should follow.

On the Tuesday papers were not available to us until about noon. In saying that I make no criticism at all, it is just factually so. A transcript of the judgment was not available and, in the urgency with which the case had been prepared, we did not in fact have before we came into court the short skeleton arguments prepared in haste by Miss Powell, for the claimant trust, or by Mr Mylonas for the Official Solicitor, who acting in the A's interests supports the judge's decision.

Mr Glancy QC, who appeared for the second defendant, who is a son of Mr A, addressed us. It became clear to us that it was difficult to consider the full merits of an appeal, or even permission to appeal, without transcripts of the evidence of particularly the doctors who gave evidence before the judge. Indeed, without having heard from Miss Powell or Mr Mylonas, we stated that we were inclined to think that the case was one where permission should be granted, but felt it important to obtain the transcript of the judgment, which we did not have, and transcripts of the evidence. After some debate as to the length of the adjournment required, we refixed the case for today, requiring the parties to use their best endeavours to obtain the transcripts. We also intimated that the parties might wish to put in further skeleton arguments in the light of the transcripts.

Transcripts have been obtained of all the relevant evidence, save that of a Dr B. The importance of the evidence of Dr B will become apparent, but it seems that Dr B had given evidence to the judge by video link and unfortunately recording of that evidence had been unsuccessful. But a note of his evidence has been agreed between counsel, and it is a full note and we clearly have the full benefit of the evidence that Dr B gave.

Further and more extensive skeleton arguments or written submissions were also put in. It is right to say that they too were rather late in the day, and no criticism is made of that. But we provided ourselves with an opportunity of reading those skeleton arguments and the written submissions in full before we commenced the hearing this morning.

We should say straightaway -- I understand my Lords to agree -- that, as we have already intimated, it is right that permission to appeal should be granted, and it is right that today's hearing should be treated as the hearing of the substantive appeal.

I can take the history, as the judge did, from a note made by the Deputy Official Solicitor. I shall attempt to interleave in the appropriate chronological place the relevant evidence.

Mr A is thought to have been born on 10th August 1919 and is therefore believed to be 86 years of age, although there has been some suggestion that he may have been born at an earlier time and is in fact over 90. He is originally from Pakistan but settled in Scotland where much of his family, including his eldest son, Mr RA, and his youngest son, Mr RK, and another of his sons, Mr SA, who is the second defendant, all live. Mr A has a significant past medical history which led to a coronary artery bypass grafting performed in 1996. He has a history of impaired renal function dating back to at least 1999. It is believed that since those dates he has had further episodes of myocardial ischaemic attacks of the brain, that is to say mini-strokes. Mr A's recent episodes of ill health date back to at least June 2005 whilst he was in Pakistan. He apparently suffered a heart attack and developed acute chronic renal failure, peripheral edema and total lack of urine production. He was admitted to an international hospital in Islamabad on 1st July 2005, where it is understood he underwent at least one course of dialysis for renal failure. It is unclear as to the extent to which Mr A's condition improved whilst at hospital in Islamabad, but in the event he was discharged by the hospital on 4th July.

On the same day he was discharged from hospital, Mr A took a flight to an airport in England where he arrived on the afternoon of 5th July 2005. Immediately after leaving the airport Mr A took a taxi with members of his family intending to return to Scotland. Unfortunately during the journey his condition deteriorated and the driver had to call an ambulance which took him to the accident and emergency department of the hospital.

On arrival at the hospital Mr A was described as being in extremis and close to death. His condition was stabilised and he was transferred to the intensive therapy unit. On 6th July he is reported to have suffered a cardiac arrest which necessitated cardiopulmonary resuscitation to revive him. By the end of 6th July Mr A required artificial support of his lungs, heart and kidneys in order to keep him alive. Mr A's treating clinicians at the hospital reported that Mr A's progress since his admission had been exceedingly poor. Attempts were made to wean him off his respiratory and renal support, but these were unsuccessful and he remained dependent on both. The cardiology and renal specialists assessed that they would be unable to improve his underlying condition, and an echocardiogram test revealed marked damage to his heart muscle with function in all but his lateral wall being impaired. Mr A also received ventilated support via a tracheotomy, comprising pressure support ventilation with supplemental oxygen. He was provided with renal support via an indwelling vascular catheter, and also received continuous haemofiltration. Nutrition was provided to Mr A via a nasogastric tube. In addition to these Mr A also had an invasive arterial and central venous catheters to manage his blood pressure and to aid blood sampling and to facilitate the administration of drugs. Mr A's treating clinicians assessed that there was little likelihood of recovery, and that he was unsuitable for chronic renal replacement therapy. They believed that the treatment he had been receiving would not change the outcome of his illnesses, and that if he continued it would subject him to both psychological and physical distress. They accordingly concluded that it was in Mr A's best interests to withdraw all but palliative care.

Dr MP, a consultant in anaesthetics and critical care at another NHS Trust, was commissioned by the hospital to provide an independent report on what medical treatment would be in Mr A's best interests. Dr MP carried out an examination of Mr A on 5th August. Dr MP reported the most marked finding on examination was a presence of severe peripheral odema. Dr MP agreed with the conclusion of the hospital's treating clinicians, reporting that there was no realistic expectation of Mr A improving his condition and that the treatment that he was receiving appeared only to be delaying his death. He stated that in his opinion it would not only be futile, but it would also result in Mr A being subjected to invasive, painful and at times undignified interventions, with little hope of these leading to his recovery. Dr MP recommended that treatment should cease to allow Mr A to die comfortably, and with as much dignity as his state could allow with appropriate palliative care.

Mr A's family have opposed the proposals to withdraw life-sustaining treatment. Mr SA's (a son)'s solicitor wrote to the Trust's solicitors on 10th August 2005 confirming his objection to the withdrawal of ventilation support, and requesting that no such withdrawal should be made without a declaration of the court. In response to this objection the Trust made their substantive application to the court.

It was at this stage that various statements were prepared on one side and the other. So, for example, a statement was prepared by Dr MS, who is a consultant anaesthetist and lead clinician for intensive care within the Intensive Care Unit at Lancaster Royal Infirmary and was responsible for the treatment of Mr A. He said in his statement, under the heading "Prognosis with treatment":

There was a further statement which was to the same effect from a Dr RM, and a further statement from a Dr DH which was also to similar effect. At the same time the hospital consulted medical personnel who were not actually responsible for treating Mr A. As I understand it, that is true of Dr PS (whose statement appears at B20 in type form and in signed form at B24 and 25). That is true also of a Dr P (whose statement starts at C17), who is a consultant in anaesthetics and critical care at Lancaster Teaching Hospital. He said this at paragraph 10:

Also at approximately the same time Mr A was examined by a consultant psychiatrist, Dr QL. The importance of his position is that he spoke Mr A's language. The aim of his examination and contact with Mr A was to take a view as to Mr A's capacity to consent to treatment. He says at page 5 of his report that he was able to talk to Mr A in his language. It is unnecessary to read the report in any detail. It is sufficient to say that he clearly received some response from Mr A. What Dr QL was able to say, at the top of page 6 of the report, was that:

It is on the basis of that evidence, as I would understand it that it has to have been accepted throughout this case, Mr A has no capacity to consent or otherwise.

Statements were also prepared on behalf of the second defendant, who was acting on behalf of the family in resisting the withdrawal of treatment. Those statements appear in the bundle. They are, so far as this stage is concerned, all dated 11th August. The statement was from SA, one son; from GS, a wife of SA; from RIA, another son. They expressed the view in various forms that Mr A was a fighter. They expressed the view that they thought that Mr A would still get better. A summary of their views can be obtained from the statement of the solicitor acting for them, his statement being at B57. He summarised the family's position in the following way:

At this time and prior to the coming on of the substantive application that the Trust was making, the Trust had to make an urgent interim application to the court and it made that application on 11th August. That was due to the fact that Mr A started to forcefully resist attempts by the hospital staff to insert a new line required for the continuation of his haemofiltration treatment. This became necessary because the previous tube had become blocked and needed replacement. Mr A is reported to have resisted attempts to insert the new line in his groin area by putting his hand over it and by raising his hand above his head. The staff at the hospital assessed that they were unable to insert the new line without using significant force. The treating clinicians concluded that the only alternative was the administration of anaesthetic and/or sedation.

Pauffley J on 11th August made an interim declaration that it was in Mr A's best interests and lawful for the clinicians caring for him to administer haemofiltration and that they might do so by having first administered a sedative and/or anaesthetic agent. At that hearing it was expressly stated that this course of action was to be undertaken with a view to keeping Mr A alive until a substantive hearing could be heard on 25th August, when the court would be in a position to give full consideration to the matters arising from the application.

It was following this hearing that the Official Solicitor instructed Dr DB. He is a consultant in anaesthesia and intensive care. He was instructed by the Official Solicitor to examine Mr A and prepare a report for the court. Dr B attended the hospital on 14th August, when he examined Mr A and spoke to Mr RA (that is the son, the second defendant) at some considerable length. Dr B identified two areas of treatment that he felt could be undertaken to establish whether Mr A might be capable of improvement to his health. The first area related to his low levels of haemoglobin, which Dr B recommended should be boosted through blood transfusions. The second area of treatment suggested was the drainage of a large accumulation of fluid which had occurred around the left side of the chest of Mr A and which was impeding his breathing. Dr B recommended that Mr A's condition should be reviewed in four to five days to see whether he was responding to these additional interventions.

Through his discussions with Mr RA and with the treating clinicians, Dr B was able to reach what he thought was an agreed scheme of care for Mr A. The terms of that agreement were recorded in Mr A's clinical notes for 14th August. It will be noted that under the terms of the note the existing care of Mr A, together with the additional interventions advised by Dr B would continue and would hopefully lead to a change in the ventilation arrangements, which would allow Mr A to more easily communicate with his family. The note, however, made provision for Mr A's treatment to change from active intervention to palliative care only in the event of the following events occurring: (a) any deterioration in Mr A's condition; (b) there being no improvement Mr A's condition over the next four to five days. The note also provided that in the event of cardiac arrest Mr A would not be resuscitated unless the attack had been triggered by a simple reversible pathology such as a sputum plug.

Dr B in his discussions with Mr RA noted that the family had concerns regarding the funeral arrangements for Mr A. The first concern related to their wish to repatriate Mr A's body to Pakistan in the event of his death. This would only be feasible if the treating clinicians were able to certify that his body was free from infection. The family were worried that Mr A's MRSA infection might prevent such a certification. The other concern was to ensure Mr A's burial took place within the very short time limits provided under Islamic custom. Dr B established it was important to Mr A's family to avoid any delay in the release of Mr A's body.

The Deputy Official Solicitor understood that in order to deal with those concerns, Dr B was able to confirm from speaking to the treating clinicians that the MRSA infection was purely superficial and would not prevent the clinicians from providing the required certification. Dr B also was able to obtain confirmation from the treating clinicians that if Mr A died following the withdrawal of treatment with the family's consent, his death would be certified as having occurred due to natural causes and his body should be released quickly. Dr B also recommended that the family be consulted over the timing of the removal of any treatment, as this was likely to dictate the timing of Mr A's death.

During the course of 15th and 16th August, Mr A's condition deteriorated. It was reported that he required inotropic support, that he had a raised temperature and a high white cell count. It is also understood that Mr A's heartbeat rose significantly. It is understood that around 9.00pm on 16th August Dr MS spoke to family members, including Mr RA but not Mr SA, who was himself receiving hospital treatment at the time. It is understood that Dr MS explained the situation and advised that in his view Mr A was now dying and his death would be imminent. Mr A's family had stated that they were given assurances that if the ventilation support was removed Mr A would die within a matter of minutes, and at worst within an hour. Dr B was advised and he refused to commit himself to any time scale for Mr A's death, but did consider that it was likely that he would die within hours rather than days. On behalf of the family Mr RA stated that he signed an agreement which agreed to the Trust withdrawing treatment, and at 10.45pm on 16th August the ventilation support was removed.

I interject here just to say that this is not an unimportant consideration in the context of a matter which must be taken into account when considering the best interests of a patient; i.e. the religious beliefs of the patient and the views of the family. At this stage the family were prepared to agree to withdrawal of ventilation support which would have, as they thought, have led to Mr A's death within a comparatively short time.

Then the Deputy Official Solicitor continued:

There were then further witness statements produced from Dr MS, Dr RM and a manager/nurse, JT. In those statements it was confirmed that the hospital re-established active support for Mr A on 19th August in accordance with the declaration of the court on the 18th. Dr MS stated that a nasogastric tube was already in place for feeding and that on 19th August he inserted a large bore cannula for haemofiltration and a central venous catheter. He advised that sedation had to be used. Dr MS reported that Mr A then suffered respiratory failure and had to be intubated and placed on a ventilator. Mr A went into ventricular tachycardia which required chest compressions and DC shock to treat his heart.

The statement from Dr MS at this time is in the bundle at B26. He sets out the position from paragraphs 4 to 13. In that statement he says this:

Paragraph 11 is then in these terms:

There was a statement in similar terms by Dr RM. As I have already stressed, there was statement also by JW, who was a nurse within the intensive care unit, and she further supports the view of Dr MS and RM. That statement is at B39.

It was at this stage that Dr R, a consultant in anaesthesia and critical care, was instructed by the solicitors acting for Mr SA, one of the sons. Dr R visited Mr A on 21st August 2005. It is apparent that he did not actually examine Mr A and did not himself attempt to speak to Mr A. In the report that he ultimately produced, in the explanatory notes he said:

In the report which he ultimately produced, he advised that Mr A looked peaceful and was receiving very comprehensive measures to sustain life, to treat infection, to hydrate and feed him, and to keep physiological parameters near normal as possible. He also advised that Mr RA had confirmed that he could no longer communicate with Mr A because of the sedation that had been used. Dr R said that the initial action of the hospital in providing full resuscitation to Mr A was correct, and he did not consider that there had been any omissions or excesses in the management of his initial care. Dr R also stated that he considered that the approach taken by the treating clinicians in considering the withdrawal of life-sustaining treatment was correct, given that there was organ failure in at least four major systems, namely renal, respiratory, cardiovascular and metabolic.

Dr R's view was then expressed in the following terms. He refers to the appropriateness of the treatment up until 11th August, and he then refers to the fact that there was withdrawal at one stage. He then said this:

Then under the heading "Life expectancy, quality of life and trust issues":

There was at this time also a further statement, it is right to say, from another of the sons. That appears at page B67 of the bundle. He said this, when dealing with his father's best interests:

Then in paragraph 23 he summarises the position:

On 23rd August, prior to the hearing before the judge, Dr B produced a further report. That was described as his supplemental report and it is the key report from Dr B in the case. It is only necessary to quote it in part:

The matter then came on for hearing before the judge on 25th August, which was a Thursday. One of the sons gave evidence, Dr R gave evidence and Dr B gave evidence. Dr B gave evidence by video link and, as already indicated, the only record of his evidence is that contained in a note prepared by the solicitors as an agreed note of what he said. His evidence in chief was to confirm what he had said in his report. For example, he said:

He then commented on Dr R's evidence, there being a dispute as to exactly what caused the original problem in Pakistan. On that Dr B expressed the view that the triggering mechanism was an impairment of cardio function, as opposed to the failure to take in sufficient fluids. He expressed the view, again, that Mr A would never be independent of filtration or haemodialysis. He dealt with an aspect of Dr R's report in this way. He quoted the first full paragraph on page 6, where Dr R had said, "At some stage Mr A's blood pressure dropped profoundly to a low of 65/30. He was given adrenaline and he went into horrendously fast and pulseless VT. DC shock therapy was required to reverse it and double strength nor-adrenaline (NA) in high dose was required to maintain an adequate blood pressure. In fact, the NA has been required ever since, but was down to a more reasonable level when I saw him." Dr B's comment on that was that that was a correct description of what happened. However, Dr R's analysis was the wrong way round. Dr B stated that it was the process of dying that occasioned a further deterioration. This was evidenced by the fact that Mr A did not require significant amounts of adrenaline, he instead required very aggressive resuscitation and non-adrenaline Chemical cardiovascular support. This indicated that Mr A has no cardiac reserves. He is in the process of dying, hence the further deterioration. He went on lower down the page:

Over the page he said:

Further down he said:

He comments on Dr R's use of the 30% chance by saying:

He was cross-examined by Mr Glancy, on behalf of the family, and he did not change his view. For example, he said:

In another answer:

He then said this:

I would interject to say that Mr Glancy accepts that what Dr B is saying in that answer is that in his view Mr A could never be removed from an intensive care unit. He would always be subjected to the procedures to which he is presently being subjected, and even in that situation he would be unlikely to survive more than six months.

Dr R also gave evidence. Again, he supported the report that he had put in. He said that he drew the conclusion that the current regime of treatment is keeping him stable, and that if they can cure the infection that is now probably only a factor that they are not unable to arrest, if they can cure the infection then there is a potential, and he would not put it more strongly than that, a potential, to get better from the acute episode that brought him into hospital.

In relation to what had brought Mr A into hospital, he said:

Further on he said:

So then Dr R was asked about the chances of some form of recovery which would enable Mr A to leave the intensive care unit. What he said in answer to that was:

Dr R was then cross-examined and he was asked about the distress that was being caused to Mr A. He said that he accepted that the distress would be being caused, but if there was a prospect of the patient recovering, then it was right that that suffering should be effected on the patient. He summarised his position in this way:

The judge asked how he saw the future if the intensive care was to continue, and he said:

So far as the judge was concerned, he had before him a very great deal of medical evidence. He had both the reports and the evidence given by video link, and that included evidence of the clinicians and nurses who were actually treating Mr A and had actually treated Mr A over a period of I think some seven weeks, but it is certainly some weeks. Those clinicians and those persons treating Mr A were taking the view that the intrusive measures were putting Mr A through considerable discomfort. They were of the view that the chances of that treatment (that is preserving Mr A in the ITU with all the intrusive measures that would be adopted) producing the result of any reasonable quality of life as being very low. They were of the view that it was in the best interests of Mr A that he should not continue to be put through the considerable discomfort, and have palliative care which would enable him to die peacefully and with dignity.

Secondly, that view was supported by two persons who had not actually treated Mr A, that is Dr R and Dr PS.

Thirdly and most compellingly, that view was supported by Dr B, a totally independent expert who had been consulted by the Official Solicitor. His position was in a nutshell that he had advised at an early stage that certain treatments should be administered to see whether that improved Mr A's condition. Following that, and following that treatment in his view not having improved Mr A's condition, indeed his condition having got worse, he expressed the very strong views that he did, first in his supplemental report and then in the evidence he gave.

Then the judge had the evidence of Dr R. Dr R was a lone doctor taking a view quite contrary to the view of all those to whom I have referred. Dr R had seen Mr A on 21st August, but he had not in fact examined him. Even Dr R gave Mr A only a very low chance of some recovery. His evidence was not as clear as it might be as to precisely what the position would be for Mr A with a longer stay in the intensive care unit. It was not precisely clear how much dialysis he then thought that Mr A would need if he ever came out of intensive care, although it is right to say that in his evidence he came down to saying it might be down to two or three times a week, but in his report it appeared that he was saying that he would need fairly permanent dialysis.

It is also fair to say that Dr R does not in his report, nor indeed in his evidence, explore fully the concept of best interests in the sense of balancing the distress that Mr A may be suffering as a result of the invasive treatments with the chances of some form of recovery. It does seem that he was very much influenced by the concept of what he described as giving the benefit of the doubt to the patient, or giving the benefit of the doubt to the views of the family.

I can say straightaway that when one examines the law, one finds obviously that the views, if one can interpret them, of what the patient might be and the views of the family are highly material factors. At the end of the day they are not however the governing factors when considering best interests.

It is in that context that I can therefore turn to the law. It is not in issue that the correct question to be asked is: is it in Mr A's best interests that the treatment which is at present prolonging his life should be continued? The debate, such it has been, has been as to precisely how the court should approach the concept of best interests and whether Kirkwood J was right in his approach.

Mr Glancy's submissions, for the family, are to the effect that the question of best interests should be tested simply by reference to what is termed the Bolam test. He submits, therefore, that if there is a responsible body of medical opinion which would not withdraw treatment, then it follows, he says, that it cannot be in the patient's best interests to withdraw that treatment. He submits that Dr R is a responsible doctor, and he thus represents a responsible body of medical opinion. He therefore says that the judge was not free to reject Dr R's view. He submits, furthermore -- and on this there is no dispute -- that best interests go wider than medical interests and include religious views, the views of the family and, so far as they can be ascertained, what would be the views of Mr A himself. He submits that the judge in his judgment gave either no weight or inadequate weight to those matters.

The argument of Miss Powell (supported by Mr Mylonas for the Official Solicitor) and that fact alone is not unimportant is, first, in so far as the Bolam test might be relevant it is posing the wrong question whether withdrawal of treatment would be supported by a responsible body of doctors. The true question is whether the continuing of treatment is lawful. But, more importantly, the submission is that if there is a conflict as to whether the treatment could be justified, and since logically there can only be one best interest, and since best interests go wider than medical interests alone, it cannot be for a doctor or one doctor to decide best interests: it is for the court to decide what is actually in the best interests. In any event it is submitted that there is no reason why in this area, as in any other, a court is not entitled to weigh the evidence given on the one side and the evidence given on the other, and no reason why a court is not entitled to reject the evidence given by Dr R.

The most helpful authorities to which we were referred were, first of all, the House of Lords' decision in Airedale NHS Trust v Bland [1993] AC 789; the decision of the Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 2 WLR 140; Re S (Adult Patient: Sterilisation) [2001] Fam 15. We were also referred most recently to the transcript of the decision of Hedley J in Portsmouth NHS Trust v Wyatt & Wyatt [2005] 1 FLR 21.

Having regard to the lateness of the hour, I am not going to make lengthy citations from those authorities. It seems to me that in Bland, all their Lordships were of the view that the question that they had to answer in that case in relation to Anthony Bland, who was in a permanent vegetative state, was whether the continuation of life support was in his best interests. If it was not in his best interests to continue that support, then their view was that it was lawful to withdraw it. They reached that position, as I understand all their speeches, on the logical basis of: (1) it is only lawful to treat an unconscious patient who cannot consent to treatment when it is in his or her best interests to do so; (2) if it is no longer in a patient's best interests to be treated, it is no longer lawful to treat them and it is therefore not unlawful to discontinue.

In that case all the medical opinion was one way. One finds statements of Lord Browne-Wilkinson, and possibly Lord Goff, to the effect that, since the correct test as to whether it is in the best interests of the patient for treatment to be commenced to be governed by what is called the Bolam test, the same test can be applied in considering whether it is right to withdraw. That is particularly apparent from the statement of Lord Browne-Wilkinson in a passage at page 883F-884A.

However, in Bland it was also recognised that there are different kinds of case where the court has to consider best interests of an incompetent patient. In Bland one had a patient in a permanent vegetative state. Lord Goff at page 868 recognises that there is a distinction to be drawn between:

What Lord Goff makes clear is that in Bland they were not concerned with the first type of case, although he cites from the judgment of Taylor LJ in Re J, relating to the first class of case. He cites the passage at page 55 where Taylor LJ said:

What Lord Goff then said instead Bland was not concerned with that type of case, but he does not intend to express any opinion and he is certainly not intending to cast any doubt on Re J.

Re J does cover the type of case with which we are concerned. In Re J the position was that the court was concerned with a small child and was concerned with whether resuscitation or mechanical ventilation or invasive procedure should be used, having regard to the quality of life that the child would have in the future if the treatment caused that child to survive. There is a famous passage in the speech of Lord Donaldson MR (as Mr Glancy rightly said, it is a sad day, his death was announced today) which sets out the balancing exercise for the court at page 149.

It is perhaps important to say this before citing that passage from his judgment. Both Bland and Re J demonstrate there is no absolute rule to prevent a court declaring that doctors may no longer need to give treatment, where the result of not giving the treatment will be to result in an earlier death of the patient than might otherwise occur. Mr Glancy sought to suggest, in his latest submissions, that there was an Article 2 point in this case. However, there is only an Article 2 point if the withdrawal of treatment would be unlawful. Bland and Re J made clear that there is no absolute in this area and there is a passage in the judgment of Dame Elizabeth Butler-Sloss P, in NHS Trust A v M and NHS Trust B v H [2001] 2 WLR 942 at paragraph 35 where she deals expressly with the Article 2 point and says:

So there is no Article 2 point, unless the position be that the withdrawal of treatment would not be in the patient's best interests.

Back to Lord Donaldson and the passage where he sets out the balancing exercise, it is page 149F where he says:

That formulation of the equation can, easily be adapted to the circumstances that exist in this case.

While looking at Re J, it is right also to draw attention to the judgment of Taylor LJ, part of which was quoted in Bland. But in dealing with what was the point in that case of counsel as to the effect of the sanctity of human life on the sort of problem which the court had to consider, Taylor LJ said this at page 158D:

As the next passage in Taylor LJ's judgment indicates, there was in fact no dispute in that case so far as the medical opinion was concerned.

That brings me to the circumstances of this case. What if there is a difference in medical opinion? Two authorities, as it seems to me, help on that. First, there is an authority which is not concerned with, as it were, a life and death situation. It is Re S. That was concerned with whether a mentally handicapped woman who could not decide matters for herself should have a hysterectomy or have inserted a coil which would need surgery every five years. The weight of medical opinion favoured a coil, but there was responsible medical opinion which also supported the hysterectomy, which was the preference of the mother of the woman.

The judge at first instance declared that a hysterectomy would be lawful, leaving the question to be further discussed between the mother and the doctors as to whether it might not be better to have a coil. The Court of Appeal recognised that in such a case, where there could be two forms of treatment which could be said to be lawful in the Bolam sense, that logically there could only be one course which was in a patient's best interests. What the court there ruled was that it was for the court to decide what was in a patient's best interests. Dame Elizabeth Butler-Sloss P at page 27 said this:

Thorpe LJ explained the position at page 29:

Re S was not concerned, as I have indicated, with a situation in which death might result. But there is the decision of Hedley J in Portsmouth NHS Trust v Wyatt & Wyatt. In that case there was a dispute between the doctors as to whether it was right to attempt aggressive invasive treatment, and it was a question of life and death so far as the child was concerned.

It is unnecessary to go into the circumstances of the case. It is sufficient simply to say that Hedley J did choose between the opinions of the doctors. That case has gone to the Court of Appeal. They have not delivered a judgment yet. But, as we understand it, the decision of Hedley J has been upheld and that would seem to indicate that no principle was established in the Court of Appeal to the effect that one doctor could determine best interests.

The position, as I see it, is that there is no reason in principle why the court should not assess the difference between medical experts. Indeed, since it is for the court to decide what is in the best interests of a patient, it seems to me that it would be contrary to its duty if it did not do so. Clearly, in a case which involves the possibility of earlier death if the invasive mechanical treatment is withdrawal, as Taylor LJ said in Re J, the requirement on the judge is to be satisfied to a very high degree of probability that the medical evidence which he accepts or prefers is correct evidence.

As it seems to me, the judge in this case appreciated the very high degree of probability to which he had to be satisfied. What he did was to take great care in assessing the medical opinion which he had. Indeed, he made clear that if he had thought that Dr R's opinion of even a 20% chance with some quality of life was realistic, then he would not have granted a declaration. He assessed the quality of the medical evidence. What he concluded was that the main body of the evidence, those who were treating Mr A, supported by independent practitioners, including an independent doctor, Dr B, were more accurate in their assessment, both of the discomfort being suffered by Mr A in the intrusive treatments that he would have to continue to receive if he was kept in the intensive care unit, and as to the possible quality of what was left of the life of this 86-year old man. To a high degree of probability, the judge was satisfied the evidence of those doctors was to be preferred. He said "I have considered the volume of evidence on both sides. I ch a settled conclusion of which I am satisfied, and it is my duty to state it."

If I may just return for a moment to what is Mr Glancy's fundamental point. He suggests that the view of one doctor can dictate what is in the best interests of the patient. That, in my view, simply cannot be right and the judge was right to reject their submissions. It overlooks, in my judgment, the role of the court completely. It is for the court ultimately, to judge in a case of this sort what is in the best interests of the patient, and that must involve the court in the exercise of assessing the medical evidence that it has. If to a high degree of probability it is satisfied that the medical evidence demonstrates that it is in the patient's best interests for the intrusive treatment to be withdrawn, then it is the duty of the court to say just that and hold that that is in the patient's best interests. It is that duty that the judge performed.

The final criticism made by Mr Glancy is that the judge failed to take into account the family's feelings and their religious beliefs. The fact that the judge put these at the end of his judgment does not in my view show that he did not have them properly in mind. It should be remembered in particular that the treating doctors had themselves had very much in mind the religious concerns of the family, and indeed all the concerns of the family. He was clearly right to consider what was certainly the key question first, as to whether there was in his view any chance of recovery of any quality of life so as to make the discomfort to which Mr A was being put justified. Once he had formed that conclusion -- that it was not justified -- it was obviously going to be difficult for the religious views and the views of the family to overcome the obvious point that, since any decision to put Mr A through further suffering would produce no benefit to Mr A, it would be difficult to see that it could be in Mr A's best interests. But on any view he did consider the family's position and their religious beliefs.

In my view, the judge performed the correct balancing exercise. He assessed the evidence very carefully. He was entitled to conclude, having taken all matters into account, that the Trust was entitled to the declarations that they sought, so that the doctors treating Mr A in the intensive care unit are not bound to continue to give invasive and uncomfortable treatment to Mr A where there is no benefit to him.

These are hard cases for the patient, they are hard cases for the family and they are hard cases for those that have to treat the patient. My sympathy goes out to all, particularly the family and I hope that they can now accept that Mr A should be allowed to die peacefully and with dignity and without further suffering. In my view this appeal should be dismissed.

LORD JUSTICE MUMMERY: I agree that, for all the reasons given by my Lord, this appeal should be dismissed. There is one aspect of the case, however, on which I wish to state some short comments in my own words.

As Lord Justice Waller has explained, the essential issue in the case is whether it is in the best interests of the patient to withdraw the life-sustaining medical treatment described in the evidence and in the declaration granted by Kirkwood J on 26th August 2005.

The judge had to decide what was in the patient's best interests, as the patient was not competent to decide for himself. The judge had to make that decision on the basis of all the evidence that was placed before him. Expert medical evidence was particularly important. In this case there was a responsible body of medical opinion, from both the NHS Trust, which had been treating the patient since early July 2005, and from an independent medical expert, Dr B, consulted by the Official Solicitor acting as the patient's litigation friend, that it was not in the best interests of this patient to continue with treatment, which the judge described as painful, uncomfortable and undignified.

A contrary opinion was held by another medical expert, Dr R, who was consulted by the patient's family. That evidence was considered by Kirkwood J, but he did not accept it. In my judgment, the existence of the conflicting evidence of Dr R did not relieve Kirkwood J of the responsibility of deciding what course was in the best interests of the patient. Nor did it prevent the judge from deciding that it was in the patient's best interests that the treatment described should be withdrawn, contrary to Dr R's opinion.

It is clear on the authorities, in both the House of Lords and in this court, that Kirkwood J had to make a decision based on a consideration of all the evidence, including conflicting medical opinion, as well as on evidence relevant to the patient and his family situation and other welfare considerations. As Dame Elizabeth Butler-Sloss P said in the case of Re S [2001] Fam 15, 28, the judicial decision will incorporate "broader ethical, social, moral and welfare considerations".

Mr Glancy, appearing for the patient's son, Mr SA, submitted that the court should apply what he described as the Bolam test to a situation such as this where there are conflicting medical opinions. The Bolam test was laid down in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

Mr Glancy, in his written submissions, posed this question: should the minority view of Dr R be ignored in deciding what is in the best interests of the patient, when one is faced with a decision that so clearly affects life and death? Putting it another way, Mr Glancy also posed this question: if the court finds that there is a body of medical opinion (albeit a minority) which is respectable, responsible and reasonable, then is the court entitled, in approaching the question whether life-supporting treatment should be withheld, to ignore that body of opinion? He submitted that that would not be the correct approach, and that the minority of expert medical opinion should only be dismissed if it is unreasonable, and neither respectable nor responsible. He went on to submit that the judge had made no such findings in this case about the evidence given by Dr R. So he contended that Kirkwood J had erred in deciding the issue of best interests by approaching the matter on the basis of which medical evidence he preferred.

I am unable, like Lord Justice Waller, to agree with Mr Glancy's criticism of Kirkwood J. Mr Glancy frankly accepted that the court must exercise its own judgment on the basis of all the evidence as to what is in the patient's best interests. In my judgment Kirkwood J did that. The criticism that he erred in not applying the Bolam test is misconceived. As explained in the judgments of Dame Elizabeth Butler-Sloss and Thorpe LJ in Re S, there is only a limited scope for very application of the Bolam test in cases where the issue before the court is whether the medical treatment of a patient, or the withdrawal of that treatment, is in all the circumstances in the best interests of the patient.

It is important to remember that the Bolam test, formulated nearly 50 years ago, was in the context of determining the standard of care to be applied in cases of alleged medical treatment and diagnosis. The standard of care to be applied is of that "a respectable body of medical opinion". In cases such as this, the court is not, of course, applying a standard of care to determine whether past medical treatment has fallen below the standard of reasonable care. In deciding whether future treatment, or the withdrawal of it, is in the patient's best interests and therefore lawful, the court must, of course, be satisfied that the expert medical evidence in favour of a particular course of action is both responsible and competent. It cannot be in the interests of a patient for the court to act on medical opinion which is not responsible and competent. If the expert medical opinion is responsible and competent, the court is entitled to act on it, even if there is a contrary medical opinion. The court has to evaluate all of the expert evidence. In the case of conflicting evidence, it has to decide which evidence carries greater weight and is to be preferred.

In a case such as this, where the survival of the patient is in issue, I would of course agree that the court must be satisfied to a "high degree of probability" as to what in the light of the conflicting evidence is in the best interests of the patient. The expression I have quoted is taken from the judgment of Taylor LJ in Re J [1981] 2 WLR 140, at 158D.

In her excellent submissions, counsel for the NHS Trust proposed a two-stage approach which was based on the decision in Re S. The first stage would be to decide whether withdrawal of the treatment would be accepted as appropriate and reasonable by a responsible body of medical opinion in accordance with the Bolam test. The second stage would be whether or not the proposed course of action is in fact in accordance with the patient's best interests. The Bolam test would not, she argued, be relevant at the second stage. The court would at the second stage weigh the conflicting medical opinions and reach a conclusion as to which it preferred. On this approach Kirkwood J was entitled to act on the evidence of the doctors whose expert opinion was in favour of the withdrawal of treatment.

For myself, I would doubt whether it is necessary to adopt a two-stage test, as there is in truth only one issue: what is in the best interests of the patient? If there is no respectable body of expert medical opinion supporting the withdrawal of treatment in a case such as this, the application by the NHS Trust would fail at the outset. Indeed, it is highly unlikely that such an application would ever have been made without a basis of solid medical opinion.

In my judgment, the reliance which Mr Glancy has placed on the Bolam test in this case involves, as Mr Mylonas on behalf of the Official Solicitor pointed out, turning the Bolam test on its head. It is true that there may be cases involving right to life issues under Article 2 of the Convention in which there is a conflict of respectable and reasonable medical opinion that would lead the court to conclude that it is in the patient's best interests to continue with treatment and to refuse to exercise its discretion granting a declaration relating to the withdrawal of life-sustaining treatment as being in the patient's best interests. But that is not this case. This was a case in which the judge was faced with a conflict of medical evidence which he was entitled to resolve in favour of the applicant NHS Trust, and to conclude that in the patient's best interests the treatment described in the declaration should be withdrawn.

For these short reasons, and for those given by Waller LJ, I would dismiss this appeal.

LORD JUSTICE TUCKEY: For the reasons given in both judgments, I agree that this appeal should be dismissed.