Report No. 196

(22) Simms Vs An NHS Trust 2002 EW HC 2734 (Dame Elizabeth Butler Sloss, President) (11.12.2002)

This case related to two patients from different families, where the patients, a boy of 18 and a girl of 16 each were suffering from a variant of Creutzfeld.- Jakob disease. Both sets of parents wanted a particular treatment, so far untested on human beings, be given as the patients did not have the mental capacity to think. The patients were lying in bed totally invalid.

The Judge quoted from her judgment In Re A: (Male Sterilisation) 2001(1) FLR 549 (555) as follows:

"The doctor, acting to that required standard, has, in my view, a second duty, that is to say, he must act in the best interests of a mentally incapacitated patient: (See also "Re S (Adult Patient Sterilisation)" 2001 Fam 12."

She also referred to Lord Goff in Re F (Mental Patient: Sterilisation), 1990 (2) AC 1 (77) that the doctor, and others have

"to exercise a choice in exactly the same way as would the Court or reasonable parent in relation to a child, making due allowance, of course, for the fact that the patient is not a child, and I am satisfied that is what the law does in fact require."

Best interests are not necessarily medical, they include emotional and all other welfare issues: (Re MB.- 1997(2) FLR 426).

The learned Judge then posed the question whether the high doses of PPS have the support of a responsible body of medical opinion in UK. After referring to Bolam test, and Sidaway (1985) AC 871 (893), that there was a view in favour of the treatment, if any, suggested by a responsible body of professionals. She analysed the risks and benefits and the best interests. After holding that it was in their best interest and there was no alternative treatment available and that the parents wanted it and the pain of the surgery was to be short-lived, she permitted the PPS treatment be given and held that it was lawful to do so.

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