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21 JAN 2013

MEDICAL TREATMENT: An NHS Trust v SR [2012] EWHC 3842 (Fam)

(Family Division, Bodey J, 21 December 2012)

The 7-year-old boy suffered from a malignant brain tumour and the multi-disciplinary team of child cancer experts recommended that following surgery he required radiotherapy and chemotherapy. That treatment package generally had an 80-86% success rate.

While the father and children's guardian agreed with the treatment plan, the mother did not and sought alternative treatment methods which would avoid or reduce the detrimental long-term side effects of the treatment proposed. The treating clinicians explained the importance of starting the treatment without delay in order to minimise the risk of residual cancer cells spreading and the preparatory work that would need to be done including making a mask to hold the child's head still and undertaking play therapy to prepare him for the demanding experience. Delays, however, occurred due to the mother's wish to change hospitals and her failure to present the child for medical appointments. The mother then went missing with the child but following a court order they were located and the child was placed in the care of the father. The NHS Trust brought urgent proceedings to determine the issue.

During the course of the hearing it was discovered that the child had a further cancerous tumour which required sugery. Once again the mother opposed that course but the court ordered that the surgery should take place in the best interests of the child without delay. The mother's appeal was dismissed and surgery took place on the following day. Proceedings in relation to post-operative care were therefore adjourned for that to take place.

On the basis of the evidence of the experts whose knowledge and experience in this field was highly impressive the balance of advantage and disadvantage tilted well in favour of radiotherapy and chemotherapy notwithstanding the detrimental side effects.

That decision was final. Whilst recognising that the mother's right to a fair trial was absolute, in all the circumstances: (i) she had a sufficient opportunity overall to put forward a case for complementary treatment for the child; and (ii) it was not unfair for this decision to be taken without there being any pre-ordained opportunity for her to apply at a further hearing.

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