Transplants for patients with learning disabilities examined in Manchester University NHS Foundation Trust v William Verdun

In a complex and finely balanced judgment dated 8 March 2023, Arbuthnot J ruled in Manchester University NHS Foundation Trust v William Verdun [2022] EWCOP 9 about whether a 17 year old in end stage renal failure with a learning disability, autism and ADHD should undergo a kidney transplant operation. In this case, the child lacked capacity and the doctors were unwilling to make the decision themselves that the child should have the transplant but referred the decision to the Court. That case may well have followed another unreported case (in another part of the country) where a similar issue was examined by the Court of Protection in 2021. In that case, doctors were refusing to provide a transplant to a young man with serious mental health conditions largely on the grounds that his mental health condition meant that they could not be confident that he would be successfully managed post-operatively and sought permission to withdraw life saving treatment. Hayden J sided with the patient in that application and ruled that lifesaving treatment should continue. In the Verdun case, the family were supportive of the transplant operation because, without it, the child’s life expectancy was about 12 months, but doctors felt they could not take the decision because of a range of concerns, including post-operative management of the patient.

The Judge in Verdun balanced the risks and benefits of the transplant operation and decided it should go ahead. That avoided concerns that any opposition by the doctors to undertaking the transplant would have been a breach of the provisions of the Equality Act 2010. That was a potentially serious issue because a disabled person with learning difficulties and a physical condition who needs a transplant has the legal right to be treated equally as any other persons who have a need for the transplant. However, balancing equality right against the challenges of managing the post-operative care for a person with learning difficulties or a serious mental health condition can be complex and challenging. One answer to that concern is that transplant teams, ethics committees and mental health trusts need to take account of the duty on everyone involved in providing care to make “reasonable adjustments” under the Equality Act 2010. That duty may well mean that post-operative care for a transplant patient will have to adjusted to meet the patient’s mental health or learning disablement needs in order to give the disabled person the same chances of success as someone who is not disabled.

In practice, understanding how that duty works out is complex because the transplant decision has to be made by the transplant team but any changes to the post-operative care arrangements are likely to fall within the responsibilities of the community mental health team or any residential placement where the disabled person will be living post-transplant.

In Verdun, discrimination issues were not at the forefront of the Court’s attention because the transplant team were prepared to undertake the operation if the court decided it should go ahead – which it did. Nonetheless, the facts of this case highlight the issues and suggest that the clinicians were entirely correct to refer the matter to the court for a decision rather than just refusing to carry out the operation. The doctors were entirely right to highlight a rage of factors, including the challenges of post-operative management of the patient, as a reason that the court may take to refuse undertaking the transplant operation on best interests grounds. In contrast, using those factors to take a decision to refuse a transplant may well be unlawful.

David Lock KC is an associate member of Landmark Chambers. He is a deputy High Court judge, a Recorder and a visiting professor at the London School of Economics.