Sandwell & West Birmingham Hospital NHS Trust -v- TW (by his litigation friend, the Official Solicitor) and FY [2021] EWCOP 13

This case involved an application brought by Sandwell & West Birmingham Hospital NHS Trust (the Applicant) for a declaration from the Court whether it would be in TW’s best interests to continue to receive life sustaining treatment, ventilation and blood pressure medication or alternatively, whether it would be lawful to withdraw it.

Over the course of the application hearing evidence was provided by the Medical Experts regarding the deterioration of TW’s health and the likelihood of recovery – unfortunately the opinions were not hopeful and the Expert’s concluded that TW would never recover in a meaningful way.

TW’s family members gave evidence and his daughters (who reside in Canada) requested they be with TW until the end of his life, or alternatively be able to visit him to say goodbye. Mr Justice Hayden praised the strength and bravery of TW’s daughters and the powerful way in which the request was forwarded however, he stated that it was impossible to arrange a visit in under 3 weeks and to artificially prolong TW’s “situation” to allow the visit of his wife and daughters was not in TW’s best interests.

Justice Hayden relied on Aintree Universal NHS Foundation Trust -v- James [2013] UKSC 67 when looking at the challenge for the Court to evaluate where best interests lie when there is a lack of capacity in the context of whether to withdraw life sustain treatment:

"….the focus is on whether it is in the patient's best interests to give the treatment, rather than on whether it is in his best interests to withhold or withdraw it. If the treatment is not in his best interests, the court will not be able to give its consent on his behalf and it will follow that it will be lawful to withhold or withdraw it. Indeed, it will follow that it will not be lawful to give it. It also follows that (provided of course that they have acted reasonably and without negligence) the clinical team will not be in breach of any duty towards the patient if they withhold or withdraw it."

He also emphasised the following:

"39. The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.

On the basis of the facts presented, Justice Hayden concluded that continuation of ventilatory support and likely invasive treatment could no longer be reconciled with TW's best interests. In those circumstances he granted the declaration sought by the Trust to withdraw treatment and introduce palliative care.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Karl Robson here

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