AVS v A NHS Foundation Trust & Anor

A court should not determine an academic or hypothetical dispute about medical treatment. A declaration concerning a person who lacks capacity must address a practical question of lawfulness, rather than provide advice or create pressure for treatment to be made available.

Under the Mental Capacity Act 2005, a best-interests declaration cannot require a clinician to provide treatment which that clinician conscientiously considers clinically inappropriate. Where the treating hospital will co-operate with a transfer, but no clinician is shown to be ready, willing and able to perform and manage the proposed treatment, the issue is hypothetical and the proceedings should not continue.

The patient lacked capacity and suffered from sporadic Creutzfeldt-Jakob disease. He had previously received intraventricular Pentosan Polysulphate (PPS), but the infusion pump failed. The treating hospital considered further PPS treatment and replacement surgery not to be in his best interests.

His brother, acting as litigation friend, applied to the Court of Protection for declarations that replacing the pump and continuing PPS were in the patient's best interests. The President directed that the proceedings would be dismissed unless a neurologist, Dr P, reported that he was able and willing to take over the patient's care, treat him with PPS, and considered that treatment in the patient's best interests. Ryder J extended the time, but no report was filed and the proceedings stood dismissed.

The brother sought permission to appeal. The central issue was whether the Court of Protection should determine best interests where no clinician or hospital had been identified as able and willing to provide the proposed treatment.

1. Permission to appeal was refused. Ward LJ gave the judgment, with which Patten and Black LJJ agreed. Although the proposed grounds concerning the existence of a dispute, the unless order, the evidence directions and the litigation friend had some prospect of success, the proceedings were doomed to fail for a different reason.

2. The court does not ordinarily decide hypothetical questions. The limited discretion to hear an academic public-law dispute must be exercised cautiously and only where a sufficient public interest justifies it. The court should be particularly restrained when asked to address ethical questions divorced from a practical factual problem: [1993] 1 W.L.R. 115; [1999] 1 A.C. 450; [2005] EWCA Civ 1003.

3. Under section 15 of the Mental Capacity Act 2005, the court may declare whether an act, omission or course of conduct is lawful. Section 1(5) requires an act or decision made under the Act for a person lacking capacity to be in that person's best interests. A best-interests finding is ordinarily the gateway to a declaration of lawfulness, but the court will not order a treating clinician to provide an intervention which that clinician conscientiously considers clinically inappropriate.

4. The hospital was willing to facilitate the patient's transfer to any clinician who genuinely considered PPS appropriate and was able to provide it. However, there was no evidence that any clinician and hospital were ready, willing and able both to replace the pump and to manage PPS. A declaration would not compel the hospital to provide treatment against its clinicians' judgment, oblige an unidentified clinician to treat, or require the provision of a hospital. The requested determination was therefore contingent and academic, and an urgent final hearing would serve no purpose.

• Court of Appeal (Civil Division): Permission to appeal was refused because, absent an identified clinician and facility able and willing to provide PPS treatment, the proposed declarations raised a hypothetical issue.

• Court of Protection (President, Sir Nicholas Wall): On 2 November 2010, the President directed that the proceedings would stand dismissed unless Dr P reported that he was able and willing to take over the patient's care, treat him with PPS, and considered that treatment to be in the patient's best interests.

• Court of Protection (Ryder J): On 16 November 2010, the time for Dr P's report was extended to 30 November 2010. No report was filed and the proceedings stood dismissed.