An Hospital NHS Trust v S & Ors

When an adult lacks capacity to decide about serious medical treatment, the court must determine whether the proposed treatment is in that person’s best interests. The assessment is a broad welfare evaluation, including medical, emotional and other welfare consequences, the enjoyment of life, the viability of alternatives, and the likely benefits and burdens of each option. A person’s inability to understand the purpose of treatment must not, by itself, justify less satisfactory treatment or exclusion from potentially life-saving treatment. Treatment may nevertheless be rejected where its likely suffering, risks and management difficulties outweigh its benefits. In an urgent or future application, the court should avoid hypothetical conclusions where the medical and personal circumstances may change.

An NHS Hospital Trust applied under the court’s inherent jurisdiction for declarations concerning the future treatment of S, an 18-year-old man with severe developmental delay, autism and end-stage renal failure who lacked capacity to make medical decisions. The Trust sought declarations concerning continued haemodialysis, peritoneal dialysis, an arteriovenous fistula and kidney transplantation. His parents supported transplantation, while the Official Solicitor represented S.

By the hearing, the parties agreed that S should continue haemodialysis while it remained effective, move to peritoneal dialysis when necessary, and not undergo transplantation immediately. The remaining issues concerned whether an AV fistula should remain a possible option and whether transplantation should be excluded in the future.

1. Best interests and decision-maker. S lacked capacity to decide his future medical care. Where there is disagreement about serious or potentially life-changing treatment, the court may grant declarations under its inherent jurisdiction. The judge, rather than the treating doctor, determines whether treatment is in the patient’s best interests. Clinicians must act in accordance with a responsible and competent body of professional opinion and must also act in the best interests of a mentally incapacitated patient, applying the principles identified in re F (mental patient: sterilisation) [1990] 2 AC 1, Simms v Simms; PA v JA [2002] EWHC 2734 and Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
2. Welfare evaluation. Best interests encompass medical, emotional and all other welfare issues. The court must assess the advantages and disadvantages of each treatment and management option, its viability, its likely effect on the patient’s best interests and enjoyment of life, and any additional suffering. The sanctity of life creates a strong presumption in favour of life-prolonging treatment, but it is not absolute: re B (A Minor)(Wardship: Medical Treatment) [1981] 1 WLR 1421 and Airedale NHS Trust v Bland [1993] AC 789.
3. Application to dialysis. Existing haemodialysis was providing S with a stable and reasonable quality of life. It was in his best interests to continue it while effective. When it became difficult or impossible, or no longer provided a satisfactory quality of life, he should move to peritoneal dialysis.
4. AV fistula. The possibility of an AV fistula should not be excluded. It should be considered after S had settled into adult renal care and other major changes, and approached carefully with learning-disability expertise, preparation and graded exposure to needles. Its potential reduction in infection risk and improvement in S’s enjoyment of life justified attempting the option rather than ruling it out.
5. Transplantation. Immediate transplantation was not in S’s best interests because dialysis was working well and the comparative medical benefits and burdens did not justify surgery at that stage. The future question was potentially hypothetical and could not be conclusively determined in advance. If dialysis ceased to be viable and the medical reasons favoured transplantation, it should not be rejected merely because S could not understand its purpose or because he might require substantial management. Those concerns could be addressed by preparation, facilitated communication and trusted support. The medical risks, likely suffering and prospects of success would still require a fresh best-interests assessment.
6. The court therefore declared or directed conclusions reflecting continued haemodialysis, later peritoneal dialysis if required, retention of the AV-fistula option, and exclusion of transplantation on non-medical grounds alone.