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Wyatt v Portsmouth Hospitals NHS Trust

Commentary on Wyatt v Portsmouth Hospitals NHS Trust [2005] EWCA Civ 1181.

The end of intolerability: The Charlotte Wyatt case in the Court of Appeal

Charles Foster,
Barrister,
Outer Temple Chambers,
London WC2

This article was first published in The Solicitor’s Journal and is reproduced here by kind permission of the author and publisher.

The law relating to decisions about non-treatment and the withdrawal of treatment from incompetent patients used to be straightforward. Or so we thought. The sanctity of human life was the guiding principle, said the judges. A corollary of this was that there was a presumption that it was in the best interests of a patient to continue to live. That presumption could be displaced, but only if it could be shown that continued existence would be intolerable. (Patients in PVS of course fall into a rather special category and have been considered separately: see Airedale NHS Trust v Bland [1993] AC 789). This test (the “intolerability test”) had a long and distinguished judicial lineage. It was promulgated most clearly by Taylor LJ in Re J (a minor) (Wardship: Medical Treatment) [1991] Fam 33. He said, at p. 55:

“I consider the correct approach is for the court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child. I say “to that child” because the test should not be whether the life would be intolerable to the decider. The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable.”

The test has had repeated appellate endorsement. Recently, for instance, Brooke LJ, in W Healthcare NHS Trust v KH [2004] EWCA Civ 1324, said at para. 26: “…normally the approach that the law should adopt is to determine whether, in the judgment of the court, the continuation of the life would be intolerable.”

This was the (reassuring) orthodoxy until the Court of Appeal gave judgment in R (on the application of Burke) v GMC [2005] EWCA 1003. There, without even citing the relevant passages in Re J, the court appeared to frown on the intolerability test, suggesting that nothing more focussed than the ordinary “best interests” test was necessary or desirable. Burke, of course, was not really about incompetent patients at all: it was possible to say that the unreasoned disapproval of Re J there was obiter. But now the Court of Appeal, in a case which certainly is about incompetent patients, has taken the cue from Burke, considered Re J in detail, and decided that the intolerability test never really represented the law.

The case is the Charlotte Wyatt case, which occupied the front page of the newspapers and will now occupy an important place in the law reports. The Court heard argument in August and handed down its reasons on 12 October: see Wyatt v Portsmouth Hospitals NHS Trust [2005] EWCA Civ 1181.

Everyone had it wrong about the intolerability test, said the court. Re J rests on the foundation of Re B (a minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421. There Templeman LJ said that the issue that had to be decided was “whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die….”, and Dunn LJ made his decision on the grounds that there was no evidence that “this child’s short life is likely to be an intolerable one.” The Court of Appeal in Wyatt (para. 65) noted that the judges in Re B had given “extempore judgments under acute pressure of time” and had “expressed themselves in somewhat emotive language”. Accordingly they couldn’t really mean what they said. What they really meant to say was that the question to be answered was the general “best interests” question. As to Re J itself, the Wyatt court thought that Taylor LJ was alone amongst the three judges there in deciding the case on the basis of the intolerability test. Brooke LJ in Re KH (cited above) was, like Templeman and Dunn LJJ, tired and stressed when he said that the intolerability test represented the law: “….we cannot but note that….an extempore judgment had to be given by this court at 5.40 pm on the same day as the judge had made the decision under appeal….”: para. 83. Accordingly he too could not be taken to mean what he said. “….[W]e do not think that in using [the cited words] Brooke LJ was intending to lay down any general guidance…”: para. 84. The intolerability test was the defective brainchild of emotional, tired or plain stupid judges: it was time for it to go.

So it is back to an untrammelled “best interests” test. If recourse to the courts is unavoidable, “the forensic debate should….be unfettered by any potentially contentious glosses on the best interests test which are likely either inappropriately to shift the focus of the debate, or to restrict the broad exercise of the judicial discretion involved in balancing the multifarious factors in the case.” (Para. 86) Intolerability is not dismissed entirely as a criterion. While “it should not be seen as a gloss on or a supplementary guide to best interests, it is….a valuable guide in the search for best interests….” (Para. 91)

The court clearly intended Wyatt to be a definitive case: “We have taken some considerable time over [the best interests] part of the case because we think it important that in cases of this sensitivity and difficulty, the guidelines which the experienced judges of the Family Division have to follow should be both as clear and as simple as is consistent with the serious issues which they engage.” (Para. 85) While emphasising that these cases are highly fact-specific, the court indicated what the approach to the determination of best interests should be.

“The welfare of the child is paramount, and the judge must look at the question of the child’s welfare from the assumed point of view of the patient…. There is a strong presumption in favour of a course of action which will prolong life, but the presumption is not irrebuttable…. The term “best interests” encompasses medical, emotional and all other welfare issues…The court must conduct a balancing exercise in which all the relevant factors are weighed….and a helpful way of undertaking this exercise is to draw up a balance sheet…..We urge caution in the application to children of factors relevant to the treatment of adults, although some general statements of principle plainly apply to both…..” (Paras. 87 and 90)

The reference to the “balance sheet” is a reference to the approach suggested by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549. That approach was roundly and repeatedly endorsed in Wyatt. Thorpe LJ said, at 560:

“There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal….Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit…..Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant…..Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously, only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.”

This last sentence is important. It highlights the difficulty in dispensing with the intolerability test. Its reference to “significant credit” emphasises that the proper balancing exercise is not a simple “does X outweigh Y?” exercise. In the case of an application which, if successful, would result in the death of a patient, there ought to be a requirement for a very significant “credit” to be demonstrated before the application is granted. If the application is granted there can be no going back; no subsequent review. The only practical way of building such a requirement into the law is by the operation of a presumption in favour of the continuation of life. The Court of Appeal in Wyatt said that that presumption persisted, but unless it is crystallised in some evidential presumption it is more or less meaningless. That was why the intolerability test was important. It imported the principle of the sanctity of life into forensic protocol. Unless it has a place in forensic protocol, the principle will get only lip service: it can be ignored without sanction.

In the context of end of life decision-making the woolly “best interests” test is too subjective to be safe. It is impossible to police its use. Remember that the vast majority of “best interests” determinations take place not in the Royal Courts of Justice but on the ward. They are made not by detached judges but by harassed clinicians and distraught parents. The intolerability test was a clear legal yardstick based on sound ethical arithmetic. It seems to have gone. The judges will be less clear how to approach these crucial cases, and the most vulnerable patients will be less safe.

SUMMARY

  • The Court of Appeal has disapproved the “intolerability test” in cases about end of life decision-making
  • The test to be applied is the “best interests” test, without any glosses
  • The term “best interests” encompasses medical, emotional and all other welfare issues.
  • Intolerability is “a valuable guide in the search for best interests…”
  • The court (and anyone else involved in such decision-making) must conduct a balancing exercise in which all the relevant factors are weighed
  • A helpful way of undertaking the balancing exercise is to draw up a balance sheet as suggested in Re A
  • Be careful about applying to cases about children factors relevant to cases about adults. There will be some common principles, however.

The opinions expressed in this article are those of the author and not of the UK Clinical Ethics Network.

November 2005