Portsmouth NHS Trust v W & Ors

Declaratory relief concerning a child’s medical treatment ordinarily determines the course of treatment once and for all. Exceptionally, it may address a clearly identified and reasonably anticipated future dispute, but it cannot be used to supervise an evolving treatment plan.

A clinician’s duty is to act in the patient’s best interests. Parental wishes should be accommodated so far as professional judgment and conscience permit, but a clinician cannot be compelled to provide treatment that the clinician concludes is contrary to the patient’s best interests and which professional conscience confirms should not be given. Where the clinical evidence cannot define in advance when treatment should be provided or withdrawn, a novel declaration giving the treating clinician a treatment veto should be approached with great caution.

This was the fourth judgment in proceedings concerning the treatment of CW, a seriously ill child. The Court of Appeal had dismissed appeals by Mr and Mrs W and referred the matter back for reconsideration because changes in CW’s condition might affect the existing declarations concerning ventilation.

CW’s condition had shown limited improvement. Her treating paediatrician considered that ventilation might be justified in an intermediate situation involving a realistic prospect of recovery, but not following catastrophic collapse or an unstoppable deterioration. The medical evidence could not define the circumstances in advance or prescribe a fixed duration for ventilation.

The Trust sought continuing declaratory relief which would, in the event of irreconcilable disagreement, give the treating doctor the final decision. The central issues were the proper scope of declaratory relief and the respective responsibilities of the treating clinician and the parents.

1. Declaratory relief. The Court of Appeal had explained that declarations in this field ordinarily determine the treatment issue once and for all. Exceptionally, a declaration may resolve a future dispute where that dispute is clearly identifiable and reasonably anticipated. It cannot be used to require the court to supervise the treatment plan and its execution.
2. Clinical responsibility. The treating clinician’s duty is to the patient and is to act in the patient’s best interests. Best interests are assessed in the context of all the circumstances. The clinician should work in partnership with the parents, and parental wishes should be accommodated as far as professional judgment and conscience permit, but no further. The principle in Re J (A Minor) (Child in Care; Medical Treatment) (1993) Fam 15 confirms that a clinician cannot be required to provide treatment which, in the clinician’s bona fide clinical judgment, is contraindicated and contrary to the patient’s best interests.
3. Professional conscience. The clinician must undertake an intellectual assessment of all the circumstances, relevant professional guidance, the possible futility or hopelessness of treatment, the need for a second opinion, the patient’s best interests and whether there is any reasonable basis for the requested treatment. A case falls within the conscience category where the clinician concludes that the treatment is inimical to the patient’s best interests and professional conscience confirms that conclusion. The clinician may refuse the treatment and cannot be compelled to provide it, although the clinician should not prevent another clinician from providing it if that clinician is willing to do so.
4. Application and outcome. The proposed declaration would be novel because it would commit a treatment veto to the treating clinician. The medical evidence made it impossible to frame a conventional declaration governing ventilation or its withdrawal. Although such an order might exceptionally be justified, the court should hesitate before granting it. At present, no further declaratory relief was required.

• Court of Appeal: The appeals by Mr and Mrs W were dismissed and the matter was referred back to the High Court for reconsideration in light of possible changes in CW’s condition: (2005) EWCA civ 1181.
• High Court (Family Division): On reconsideration, the court refused to grant further declaratory relief.