W Healthcare NHS Trust v KH and Others: CA 17 Sep 2004

The patient was very severely disabled. She was a lady of 59 suffering from multiple sclerosis. She was not competent to make decisions about her own treatment. She was in a pitiful state, and had to be fed through a percutaneous gastronomy tube but she was not in a vegetative state. Her family and the Official solicitor considered that treatment should be withdrawn, but her doctors disagreed.
Held: The patient was incapable of deciding her own fate. There was no sufficiently clear advance directive. The court was left to decide her best interests. The proposed action would be a course of starvation, which the patient would feel. The judge had held that death by this means would be even more undignified. Here the court was acting as a court of appeal, and should be reluctant to substitute its own view of the facts for that of the judge. The judge had carefully balanced the arguments and facts and applied the law as it stands. English law places a heavy burden of proof on those who suggest a course of action which will lead to a death. The appeal failed.
Brooke LJ: ‘Lord Justice Taylor referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. He concluded that part of his judgment by saying that the test must be whether ‘the child in question is capable of exercising sound judgment or would consider the life tolerable.
Mr Francis’ submissions have convinced me that there is a danger of detecting a substituted choice test in this passage. Normally the approach that the law should adopt is to determine whether, in the judgment of the court, the continuation of life would be intolerable. In one of the cases Lord Justice Thorpe has suggested that in these best interests cases the law should draw up a balance sheet, putting the advantages on one side and the disadvantages on another.
The way that the judge came to the conclusion was that in KH’s present state he was unable to say that life prolonging treatment would provide no benefit, and that death by, in effect, starvation would be even less dignified than the death which she will face in due course if kept artificially alive for more weeks or months or possibly years.
The judgment is not ours to make. This is a court of appeal. The balance is for the judge of first instance to assess, and this court can only interfere on well recognised grounds if the judge has misdirected himself in law or there are reasons why we are entitled to fault the exercise of the judgment he concluded.
The judge, having rightly put on one side the question whether there was a legally binding advance directive, looked, on the one hand, at the consequences of withdrawing nutrition and the effect this would have and, on the other hand, at the continuance of a life in which there is some feeling of pain, some sensation and some slight ability to answer questions. He came to the conclusion that it was in the best interests of the patient to accede to the unanimous wish of those who are responsible for her treatment.
As I have said, the Official Solicitor supports this application. These cases are always agonisingly difficult. Nobody would wish to be in the position in which the members of this family find themselves. But judges have to apply the law as they find it. English law, as it stands at present, places a very heavy burden on those who are advocating a course which would lead inevitably to the cessation of a human life. In my judgment, it is impossible for this court to interfere with the judge’s judgment.
Accordingly I would dismiss this appeal.’


Brooke LJ, Clarke LJ, Maurice Kay J


Times 09-Dec-2004, [2004] EWCA Civ 1324


England and Wales


CitedIn re J (a Minor) (Wardship: Medical Treatment) CA 1986
The court referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. The child suffered a condition which included the likelihood of periodic respiratory . .

Cited by:

CitedWyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .
Lists of cited by and citing cases may be incomplete.

Family, Health

Updated: 30 April 2022; Ref: scu.221443