Re AVS; CS v A NHS Foundation Trust  EWHC 2746 (COP)
(1) AVS suffered from CJD and at a previous hearing it had been declared that he lacked capacity to instruct solicitors or make medical decisions. (2) The critical question was: 'is it in AVS's bests interests that PPS treatment continues to be administered to him?' The applicant wanted it to recommence; the Trust did not. (3) The applicant brother was not an appropriate next friend as the relationship between him and the clinicians had broken down completely and he lacked the necessary objectivity: the Official Solicitor would be invited to act. (4) The court's 'best interests' analysis embraces all the circumstances of the case, and clinical opinion is not necessarily determinative, but it is unlikely in the extreme that the court would order a clinician to undertake a medical intervention which the clinician did not believe to be in the best interests of the patient. (5) These proceedings would therefore be doomed to failure without a clinical opinion on the applicant's side. A doctor had been identified as willing to take over AVS's care and, it seemed, administration of PPS: proceedings would be dismissed after 14 days unless a report from Dr P were filed to answer the Trust's reports and identifying a proper issue for the court's determination. (6) Directions were given as to medical and non-medical witnesses, disclosure of medical records and evidence, instruction of experts and an experts' meeting.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
24. AVS v A NHS Foundation TrustB (Sir Nicholas Wall, the President, 2 November 2010). www.bailii.org/ew/cases/EWHC/COP/2010/2746.html This judgment is unusual because it is an interlocutory decision, rather than a final decision. AVS was diagnosed as having Creutzfeldt-Jakob Disease (CJD) in May 2008. His consultant neurologist is of the view that for the last eighteen months there has been “no evidence of awareness of self or environment.” Since June 2008 AVS has received Pentosan Polysulphate (PPS) by way of intraventricular infusion. On 26 August 2010 the infusion pump malfunctioned, and the clinicians at the hospital concluded that it was not in AVS’s best interests to replace the pump and continue administering PPS. On 8 October 2010 AVS’s brother, CS, who is a solicitor, applied to the court to decide whether it was in AVS’s best interests to undergo surgery to replace the infusion pumps, and for the administration of PPS to continue thereafter. CS holds a Lasting Power of Attorney for personal welfare and is authorised to give or refuse consent to life- sustaining treatment on behalf of AVS.
The President expressed the opinion that CS had not demonstrated the necessary objectivity to act as AVS’s litigation friend in circumstances where CS’s relationship with the NHS Trust had completely broken down. There was no medical evidence to support the course of action proposed by CS on his brother’s behalf. All the medical evidence, advanced by the NHS Trust, was the other way. There was a suggestion that Dr P, from another NHS Trust, might take over AVS’s case and would continue the procedure advocated by CS. At paragraph 24 the President stated: “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. 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.”
Before: Sir Nicholas Wall P
Jeremy Pendlebury (instructed by Michelmores) for the Applicant
Fenella Morris (instructed by Hempsons) for the Respondent
AVS v NHS TrustB
Case No: COP11903702