Re AVS; AVS v A NHS Foundation Trust [2011] EWCA Civ 7

Court of Appeal refuse permission to appeal from Court of Protection decision in medical treatment case. [Official summary available.]

Official summary

The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).

28. AVS v A NHS Foundation Trust and B PCT [2011] EWCA Civ 7B (Lord Justice Ward, Lord Justice Patten and Lady Justice Black, 17 January 2011). This is an appeal against the decision of the President, which was discussed in paragraph 24 above. Giving the lead judgment dismissing the appeal, at paragraphs 38 and 39 Lord Justice Ward said as follows.

“38. 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.
39. Like the President, I have also reached the conclusion that the continuation of this litigation by permitting a lengthy hearing to be urgently arranged for numerous busy medical practitioners to be cross-examined truly would be “doomed to failure.” If 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.”

Related judgments

Re AVS; AVS v A NHS Foundation Trust [2011] EWCA Civ 7


Thanks to Alex Ruck Keene (39 Essex Chambers) for providing the judgment.

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