NHS Trust v A & Anor

For a patient who lacks capacity, the court must decide whether continuing life-sustaining treatment is in the patient’s best interests. Best interests extend beyond clinical benefit to the patient’s wishes, welfare, family and religious views, and broader ethical, social and moral considerations, although these factors do not dictate the result. The Bolam standard has a limited role: responsible and competent medical opinion is required, but a contrary responsible opinion does not prevent the court weighing the evidence and choosing the better-supported course. A strong presumption favours prolonging life, but it is rebuttable where treatment causes substantial distress and offers no commensurate benefit. Where withdrawal may hasten death, the court must reach a high degree of probability about the evidence it accepts, consistently with Re J [1991] 2 WLR 140.

Mr A, an elderly man suffering irreversible multi-organ failure, lacked capacity to consent to treatment and remained dependent on invasive ventilation and renal support. The NHS Trust sought declarations that withdrawal of life-sustaining treatment was lawful and in his best interests. His family opposed withdrawal, relying on the possibility of recovery, their observations of him, and their Islamic religious beliefs.

Following interim orders requiring continued active treatment, Kirkwood J granted the declarations on 26 August 2005. The family appealed. The central issues were whether the judge had to accept any responsible medical opinion supporting continuation of treatment, or could evaluate conflicting expert evidence, and whether withdrawal was inconsistent with Article 2.

Disposition. Permission to appeal was granted and the substantive appeal was dismissed. The declarations made by Kirkwood J were upheld.

1. Best interests. For a patient unable to consent, continued life-sustaining treatment is lawful only if it is in the patient’s best interests. If continuation is no longer in the patient’s best interests, it is no longer lawful and may be withdrawn. The Court applied the reasoning in Airedale NHS Trust v Bland [1993] AC 789, while recognising that Bland concerned a different factual category involving a permanent vegetative state.
2. Role of the court and medical evidence. Best interests are a judicial question. The existence of a responsible body of medical opinion supporting continuation does not require the court to accept that course, or permit one doctor to dictate the result. The court must assess all conflicting expert evidence and decide which carries greater weight. The Bolam test has a limited threshold role, ensuring that the proposed course is supported by responsible and competent medical opinion. It does not determine the ultimate best-interests decision. Mummery LJ doubted whether a formal two-stage test was necessary, but agreed that the court must evaluate the evidence.
3. Balancing exercise. A strong presumption favours prolonging life, but it is rebuttable. The court must weigh the pain, suffering and distress caused by the treatment against the likely quality of life and benefit produced by prolonging life, from the patient’s assumed perspective. Where withdrawal may cause earlier death, the judge must be satisfied to a high degree of probability that the medical evidence preferred is correct. This followed the approach in Re J [1991] 2 WLR 140.
4. Application. Kirkwood J was entitled to prefer the evidence of the treating clinicians and Dr B over Dr R’s contrary opinion. The accepted evidence showed no realistic prospect of recovery or meaningful survival free from invasive support, while continued treatment caused substantial discomfort and distress without commensurate benefit. The family’s views and religious beliefs were material and were considered, but they were not governing factors.
5. Article 2 and final order. Article 2 did not prevent withdrawal because the treatment was not in Mr A’s best interests and the responsible clinical decision was supported by respectable medical opinion. The Legal Services Commission was ordered to pay the respondents’ costs, subject to detailed assessment. Tuckey LJ agreed with both judgments.

• Court of Appeal (Civil Division) granted permission to appeal and dismissed the substantive appeal, upholding the declarations: [2005] EWCA Civ 1145.
• High Court of Justice, Family Division Kirkwood J granted declarations on 26 August 2005 that Mr A lacked capacity, withdrawal of specified life-sustaining treatment was in his best interests and the treatment could lawfully be discontinued.
• High Court of Justice, Family Division Pauffley J made an interim declaration on 11 August 2005 permitting haemofiltration after sedation or anaesthesia. Kirkwood J later ordered reintroduction of active support pending the substantive hearing.