Judge: Ward, Patten and Black LJJ
Citation:  EWCA Civ 7
Summary: The Court of Appeal has very recently upheld the robust case management decision of the President in AVS v NHS Trust  EWHC 2746 (COP), reported in our November newsletter. In short, the President had given an ‘unless’ order that medical treatment proceedings concerning a patient with vCJD should come to an end within 14 days unless AVS’s brother was able to produce a report from a doctor identifying a proper issue for the Court’s determination.
The Court of Appeal had little hesitation disposing of the brother’s appeal. Ward LJ, giving the sole reasoned judgment, identified the essential futility of proceedings continuing where no medical practitioner was ready and willing and able to provide the medical treatment AVS’ brother considered should be given to him. He made clear the Court’s reluctance to decide hypothetical questions, citing R v Home Secretary ex parte Wynne  1 WLR 115, R v Secretary of State for the Home Department, ex parte Salem  1 AC 450, R (Burke) v General Medical Council  QB 273 and Gawler v Raettig  EWCA Civ 1560, before noting (at paragraph 34) that the case in question raised exactly the sort of academic or hypothetical appeal the Court should decline to entertain. He continued at paragraph 34:
“… The relief being sought is that the court grant declarations: ‘(ii) that it is in the best interests of [the patient] for the infusion pump necessary for the administration of intraventricular PPS to be replaced, (iii) that it is in the best interests of [the patient’s] for the administration of intraventricular PPS to continue.’ One has to ask, therefore, what purpose will be served by such declarations. A finding, not necessarily a declaration, that a course of treatment is, or is not, in a patient’s best interest is usually the essential gateway to a declaration that such treatment would, or would not, be lawful. It is trite that the court will not order medical treatment to be carried out if the treating physician/surgeon is unwilling to offer that treatment for clinical reasons conscientiously held by that medical practitioner. The court’s intervention is sought and is necessary to overcome a reluctance or reticence to undertake the treatment for fear that doing so would be unlawful and render him or her open to criminal or tortious sanction. It is significant that the court’s power to make declarations under the Mental Capacity Act 2005 is conferred by section 15 of the Act in these terms:
“(1) The court may make declarations as to – …
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) “Act” includes an omission and a course of conduct.”
35. Section 1(5) of the Act sets out the principles underpinning the Act and provides:
“1(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interest.”
36. Even if, as the applicant contends, there is a sufficient dispute about whether or not the continued infusion of PPS is in the best interests of the patient and whether, therefore, the pump should or should not be replaced, there is no question of the respondent hospital hindering or preventing the transfer of the patient to the care of any physician or surgeon who, contrary to their own views, sincerely believes that the procedure is in the interests of this patient and is willing to provide it. If Mr NT is prepared to operate and can find a hospital where the operation can take place, the respondent hospital will co-operate in the transfer of the patient. If Dr P can provide the treatment, the hospital will discharge the patient from their care to his. The fact that the respondent hospital does not believe that the placement of the pump and the continuation of infusion are in the patient’s best interest simply does not matter if a medical practitioner who takes the other view will accept responsibility for the patient. The transfer of the patient to another’s care would take place co-operatively and no approval from the court is required to enable that transfer to take place.
37. The harsh fact is that, although Mr NT and Professor R are willing to replace the pump, there is no evidence of their present ability to do so. No hospital has been identified where that surgery can be undertaken. Without a new pump being inserted, there is nothing Dr P can do. This litigation is going nowhere. What the court is being invited to do is no more nor less than to declare that if a medical practitioner is ready, willing and able to operate and if a medical practitioner is willing, ready and able to replenish the supply of PPS, then it would be in the best interests of the patient to do so. The President was correct to identify the need for evidence from Dr P to plug this gap in the claimant’s case. Without that evidence that someone is “able and willing to take over the care of [the patient] and treat him with PPS”, we are dealing with a purely hypothetical matter. A declaration of the kind sought will not force the respondent hospital to provide treatment against their clinicians’ clinical judgment. To use a declaration of the court to twist the arm of some other clinician, as yet unidentified, to carry out these procedures or to put pressure upon the Secretary of State to provide a hospital where these procedures may be undertaken is an abuse of the process of the court and should not be tolerated.”
Ward LJ concluded at paragraph 39 that, “[i]f there are clinicians out there prepared to treat the patient then the patient will be discharged into their care and there would be no need for court intervention. If there is no-one available to undertake the necessary operation the question of whether or not it would be in the patient’s best interests for that to happen is wholly academic and the process should be called to a halt here and now.”
Comment: The passages above have been cited at some length because, despite the fact-specific nature of the judgment, it is clear that the Court of Appeal intended that this judgment (upon a permission application) should be cited in the future, and that they intended to make a statement of principle as to the boundaries of the Court’s willingness to become involved in clinical decision-making. We await a decision of equal robustness and clarity as to the Court’s willingness to become involved in public law decision-making following the implementation of the MCA.