Teaching Hospitals NHS Trust v DV (A Child)

Where medical treatment for a minor is finely balanced, involves differing medical views, or lacks agreement among those concerned with the patient’s welfare, an application to the court can and should be made. The court must determine the minor’s best interests, even where the minor has capacity and strongly expressed wishes. In assessing best interests, the court should give substantial weight to age, maturity, consistent wishes, religious convictions, psychological welfare, medical risks and the practical consequences of proceeding or refusing treatment. The court may approve treatment subject to clinicians respecting a capable minor’s refusal of blood products. A broader challenge to the statutory framework will not be determined where it merely re-runs an unsuccessful argument and is unlikely to benefit the minor before adulthood.

A teaching NHS Trust applied under the High Court’s inherent jurisdiction for declarations that pulmonary metastasectomy for a 17-year-old minor was lawful and in his best interests, and that clinicians should not administer blood products contrary to his wishes. The minor had capacity, supported the surgery, and consistently refused blood products as a Jehovah’s Witness. The Trust and treating team considered the decision finely balanced because haemorrhage, although unlikely, could be serious or fatal.

The minor also sought declarations that he had an exclusive legal right to consent to or refuse medical treatment, relying on section 8 of the Family Law Reform Act 1969 and the European Convention on Human Rights. The central issues were whether the court should approve the treatment plan and whether the wider legal challenge should proceed.

1. Medical treatment and best interests. The court approved the proposed pulmonary metastasectomy and declared it lawful and in the minor’s best interests. Although the minor had capacity and his wishes were clear, firmly held and based on deeply rooted religious beliefs, he remained a minor and the court had to determine his best interests.
2. The assessment gave substantial weight to his age, imminent adulthood, consistent wishes, religious convictions, risk of psychological re-traumatisation, the low risk of haemorrhage, measures available to reduce bleeding, the practical difficulty of compelling treatment, the risk of undermining future treatment, and his parents’ and clinicians’ views. The risk that blood products might be life-preserving remained a powerful countervailing consideration. The treating team considered that using blood products would damage his welfare and might prevent the surgery from taking place.
3. Need for court involvement. The court followed the approach stated by Lady Black in An NHS Trust and others v Y, [2018] UKSC 46: where the medical process leaves a finely balanced decision, differing medical opinions, or a lack of agreement about the proposed treatment, a court application can and should be made. The fact that the minor, his parents and clinicians supported the agreed treatment plan did not remove the need for judicial determination in these circumstances.
4. Wider legal challenge. The application for declarations that the minor had an exclusive legal right to consent to or refuse treatment was dismissed. It sought to re-run the argument made unsuccessfully in Re X (No2), [2021] EWHC 65 (Fam), and would require substantial further court resources while possibly becoming valueless when the minor reached 18. The court found no sufficient uncertainty or benefit warranting a separate hearing.
5. If further invasive treatment became necessary before adulthood, any renewed application would have to be determined on the circumstances then prevailing, with appropriate weight given to the minor’s views.