Judge: Sir Nicholas Wall, President of the Family Division
Citation:  EWHC 2746
Summary: This case very recently decided by the President is interesting as an example of the court’s approach to limiting expert and lay evidence, and to the removal of a family member as a litigation friend.
The case concerned a dispute as to whether AVS, a patient with vCJD, should have a particular type of treatment re-started. The court held that AVS’s brother, CS, who was a solicitor, had not demonstrated the necessary objectivity to act as a litigation friend in circumstances where CS’s relationship with the NHS Trust had completely broken down.
As matters stood before the President, there was no medical evidence to support the particular course of action proposed by CS on his brother’s behalf. All the medical evidence (advanced by the Trust) was the other way. There was a suggestion that a Dr P (from another NHS Trust) would come forward to take over AVS’s case and would continue with the procedure advocated by CS: in which case, it would be likely that the proceedings would terminate. Catering for the possibility that the proceedings would continue, however, the President provided as follows:
“22. In these circumstances, I must give directions on the basis that the case remains in court and that the lis potentially identified by Dr P remains. At the same time, it seems to me that both the court and the trust are entitled to know what Dr P’s opinion is. I therefore came to the view that the proper course was to direct that the current proceedings should stand dismissed at the expiration of 14 days from the date on which this judgment is handed down unless within on that time CS files a report from Dr P in answer to the reports by Dr DH, Professor K and Dr. MR identifying a proper issue for the court’s determination.
23. I take this robust view of the case for one quite simple reason. On 14 October 2010 it was argued on CS’s behalf that clinical opinion was not necessarily determinative of a “best interests” enquiry by the court. As a broad generalisation, I do not disagree with that proposition, and I certainly accept that the court’s “best interests” analysis embraces all the circumstances of the case, of which clinical opinion is but one part.
24. At the same time, it strikes me as unlikely in the extreme that the court would order a clinician to undertake a medical intervention which he, the clinician, did not believe to be in the best interests of the patient. Absent a clinical opinion that the continued administration of PPS would be in the best interests of the patient, therefore, it seems to me that the current proceedings would be doomed to failure. In my judgment, therefore, these proceedings should stand dismissed unless Dr P provides a report properly identifying the lis upon which the court is being asked to adjudicate.”
The President then set down a series of directions relating to disclosure and witnesses in the event that the proceedings were to continue. He made it clear that he had in mind in respect of both that he was “dealing with matters of life and death, and that strong emotions have been aroused. I have a duty under ECHR Article 6 to legislate for a fair hearing, and in particular, whatever I decide, I do not want the unsuccessful party to leave the court feeling that he or it has not had a fair hearing. In addition, I must remember that I am dealing in large measure with professionals, who lead busy lives and have many calls on their time” (paragraph 29). In the circumstances, the President limited the medical evidence to 3 witnesses for each side.
Comment: The case provides a clear indication of the pragmatic and robust stance that the current President is taking towards those medical cases coming before him, not least by virtue of an unless order being made in respect of the filing of further medical opinion by CS. The only quibble that the authors would have with the approach taken in this case is that they find it impossible to imagine any circumstance under which the Court would order a clinician to carry out a procedure against his professional judgment as to the best interests of the patient, as this would be to go so directly against the professional codes applying to clinicians.