AVS v A NHS Foundation Trust & Anor

AVS v A NHS Foundation Trust & Anor

Permission to appeal is refused because the proceedings are academic and hypothetical in the absence of a clinician willing and able to provide the treatment; the court will not make declarations in such circumstances, and the President was correct to require evidence of a treating clinician and to dismiss the proceedings when none was forthcoming.

Parties
Appellant: AVS (by his litigation friend CS); First Respondent: A NHS Foundation Trust; Second Respondent: The B PCT
Jurisdiction
England and Wales
Judgment Date
17 January 2011
Procedural Posture
Appeal (civil) / Permission to Appeal From Court of Protection Orders
Outcome
Permission to appeal refused; proceedings dismissed
Legal Topics
Best Interests Determination, Medical Treatment for Incapacitated Patients, Declaratory Relief, Litigation Friend Substitution, Court of Protection Procedure
Medical Law Mental Capacity Law Best Interests Determination Medical Treatment for Incapacitated Patients Declaratory Relief Litigation Friend Substitution Court of Protection Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

AVS (by his litigation friend CS)

Appellant

A NHS Foundation Trust

First Respondent

The B PCT

Second Respondent

Procedural Posture

Appeal (civil) / Permission to Appeal From Court of Protection Orders

Legal Issues

  1. 1 Whether the court should make declarations that it is in the best interests of an incapacitated patient to receive experimental medical treatment (PPS) and undergo surgery for a replacement infusion pump
  2. 2 Whether there was a live issue (lis) for the court to resolve in the absence of a clinician willing and able to provide the treatment
  3. 3 Whether the President was correct to substitute the litigation friend and make an unless order for evidence from a treating clinician

Ratio Decidendi

Permission to appeal is refused because the proceedings are academic and hypothetical in the absence of a clinician willing and able to provide the treatment; the court will not make declarations in such circumstances, and the President was correct to require evidence of a treating clinician and to dismiss the proceedings when none was forthcoming.

Court Disposition

Permission to appeal refused; proceedings dismissed

Orders

  • Permission to appeal refused
  • Proceedings dismissed for want of a live issue