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Family Law

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Court of Protection Practice and Procedure Conference 2016

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15 MAY 2009

MEDICAL TREATMENT: T v NHS Trust and OT [2009] EWCA Civ 409

(Court of Appeal; Ward and Wilson LJJ; 15 May 2009)

The child was born with a mitochondrial condition which led to a breakdown in the functioning of many areas of his body. Very shortly after birth the child was admitted to hospital, and thereafter was entirely dependent on a ventilator. The child had suffered brain stem damage, a stroke leading to the death of an area of his brain, and inflammation leading to calcification of his brain; he was also experiencing fits and abnormal movements. The unanimous medical evidence was that the child was likely to suffer more strokes, and would probably die before reaching the age of 3 and certainly before reaching the age of 5. The hospital had performed a tracheostomy, had introduced an endotracheal tube and had inserted a Hickman line to allow drugs to be administered; these were necessary, but increased the risk of infections. Because the child was unable to swallow the natural secretions of his mouth, he had to be suctioned increasingly frequently; there was evidence that this caused the child pain. When the child was about 4 months old, conflicts emerged between the hospital and the parents, principally because the doctors treating the child concluded that long-term care was not in the child's best interests. The hospital invited the parents to obtain a second opinion when the child was about 7 months old. When the child was 8 months old, the parents consulted solicitors. While the parents were considering a suggestion by the hospital that the child be sent home, on the basis that he receive home ventilation and whatever else he needed to remain comfortable, but that there be no active interventions, and no readmission to the intensive care unit, the child's condition suddenly deteriorated. The child was now 10 months old. The hospital issued an urgent application seeking approval of the immediate withdrawal of ventilation. The court refused to proceed on that day, because of the very short notice to the parents, but began hearing the case on the following day. On the first day the court granted a declaration that it would be lawful for the hospital not to resuscitate or in any other way to escalate the child's medical treatment, but the hearing continued for a further 9 days, during which the child's condition fluctuated between poor but stable, and critical. Having tried but failed to identify experts prepared to support their position, the parents sought an adjournment; this was refused. The judge made findings that: (i) the child had minimal consciousness but retained awareness of pain, (ii) the brain damage was irreversible, and (iii) future treatment would be futile and would increase the child's suffering. The judge considered that the situation was likely to result in a vicious circle in which even more invasive treatment would precipitate even more profound crises. The judge granted a declaration that it would be lawful for the hospital to withdraw and withhold ventilatory support, and to move to a regime of palliative care. The parents sought permission to appeal, on the grounds that the judge should not have refused their adjournment application, giving them no proper opportunity to consider the hospital's case or to collect evidence of their own.

Permission was refused. It had clearly been difficult for the hospital to decide when the time had come to conclude that the developing issue with the parents was incapable of consensual resolution. The parents had not been totally unprepared for the litigation, albeit that the proceedings had been issued suddenly when the child's condition worsened. The Family Division had been able to accommodate the case in an extraordinary, indeed admirable way; the hearing had taken as long as it had partly because the judge had bent over backwards to afford the parents time to take stock and to collect evidence. The judge's decision to proceed forthwith, to conduct a full-scale, intensive, efficient yet unhurried determination, calibrated with an urgency commensurate with the child's generally deteriorating condition, of the most painful and profound issue imaginable, namely whether the child should die immediately, or a little later following profound further pain and misery, was not appealable.

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