Best interests - experimental stem cell treatment - wishes and feelings

Wednesday 4 October 2017

B v D [2017] EWCOP 15, 5 September 2017, Baker J

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B v D [2017] EWCOP 15, 5 September 2017, Baker J

D’s mother made an application for a declaration and order that it is in D’s best interests to receive stem cell treatment for his brain injury at a clinic in Belgrade in Serbia. The family had the means to fund the treatment. The application was opposed by the Official Solicitor and by the Ministry of Defence (“ MOD”) which was responsible for D’s care and treatment (the injury had been caused by another soldier).

D lacked capacity but was high functioning and was expressing that he wanted the treatment. Baker J spoke to D and heard first hand his desire to have the treatment.  The court heard from the treating doctor and an expert and the medical opinion on the benefit and risks associated with the treatment diverged. The treatment was experimental and it was likely that there was some risk.

For these reasons the Official Solicitor and the MOD opposed the treatment. Baker J adopted the balance sheet approach advocated by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 whilst taking into account the warning given by McFarlane LJ in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 at para 52 on the balance sheet being no more than an aide memoire and route to judgment and not a substitution for the judgment itself.

Baker J also reminded himself of Baroness Hale’s comments in Aintree University Hospital NHS Foundation Trust v James and others [2013] UKSC at paragraphs 39 and 45 and Wye Valley v B [2015] EWCOP 60 at paragraphs 10-12 as well as Munby J’s comments in Re MM (An Adult) [2007] EWHC 2003 (Fam).

Baker J found this a difficult decision but, subject to certain steps being taken, decided to allow D to receive the treatment (paragraph 60).  By reference to Re MM he considered that D would be miserable if he is denied treatment going beyond mere disappointment and this may significantly impede or delay his rehabilitation. There was a psychological benefit to having D’s wishes and feelings respected (Wye Valley) and looking a D’s welfare in the widest sense (Aintree) there was a strong argument that his safety may be bought at too high a price in terms of his happiness and emotional welfare.

The treating doctor must provide his preliminary assessment to the official solicitor who, if he had any concerns, could bring the matter to court.

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