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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> The NHS Trust v A (a child) & Ors [2007] EWHC 1696 (Fam) (18 July 2007) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2007/1696.html Cite as: [2007] EWHC 1696 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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THE NHS TRUST |
Applicants |
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and |
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A (a child) (represented by an officer of the Children and Family Court Advisory & Support Service as child's guardian) |
First Respondent |
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and |
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Mrs A (child's mother) |
Second Respondent |
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and |
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Mr A (child's father) |
Third Respondent |
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Miss Melanie Carew (instructed by CAFCASS) for the first respondent child
Philip Havers QC and Sydney Chawatama (instructed by Leigh Day and Co)
for the second and third respondent parents
(counsel and solicitors instructed and acting pro bono)
Hearing dates: 4th, 5th and 9th July 2007
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Crown Copyright ©
Mr Justice Holman:
The issue
Publicity
The representation
The facts
The medical evidence
Risks
Death if no BMT
The evidence and position of the parents
The guardian
The law
i. As a dispute has arisen between the treating doctors and the parents, and one . [party has] asked the court to make a decision, it is the role and duty of the court to do so and to exercise its own independent and objective judgment.
ii. The right and power of the court to do so only arises because the patient, in this case because [she] is a child, lacks the capacity to make a decision for [herself].
iii. I am not deciding what decision I might make for myself if I was, hypothetically, in the situation of the patient; nor for a child of my own if in that situation; nor whether the respective decisions of the doctors on the one hand or the parents on the other are reasonable decisions.
iv. The matter must be decided by the application of an objective approach or test.
v. That test is the best interests of the patient. Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision. These include, non-exhaustively, medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations.
vi. It is impossible to weigh such considerations mathematically, but the court must do the best it can to balance all the conflicting considerations in a particular case and see where the final balance of the best interests lies.
vii. Considerable weight (Lord Donaldson of Lymington MR referred to "a very strong presumption") must be attached to the prolongation of life because the individual human instinct and desire to survive is strong and must be presumed to be strong in the patient. But it is not absolute, nor necessarily decisive; and may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering or other burdens of living are sufficiently great.
viii. These considerations remain well expressed in the words as relatively long ago now as 1991 of Lord Donaldson of Lymington in Re J (A minor) (wardship: medical treatment) [1991] Fam 33 at page 46 where he said:
"There is without doubt a very strong presumption in favour of a course of action which will prolong life, but it is not irrebuttable Account has to be taken of the pain and suffering and quality of life which the child will experience if life is prolonged. Account has also to be taken of the pain and suffering involved in the proposed treatment We know that the instinct and desire for survival is very strong. We all believe in and assert the sanctity of human life . Even very severely handicapped people find a quality of life rewarding which to the unhandicapped may seem manifestly intolerable. People have an amazing adaptability. But in the end there will be cases in which the answer must be that it is not in the interests of the child to subject it to treatment which will cause it increased suffering and produce no commensurate benefit, giving the fullest possible weight to the child's, and mankind's desire to survive."
ix. All these cases are very fact specific, i.e. they depend entirely on the facts of the individual case.
x. The views and opinions of both the doctors and the parents must be carefully considered. Where, as in this case, the parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well; although the court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotion or sentiment. It is important to stress that the reference is to the views and opinions of the parents. Their own wishes, however understandable in human terms, are wholly irrelevant to consideration of the objective best interests of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child/parent relationship.
"This case concerns a child who must himself be incapable, by reason of his age, of any religious belief. An objective balancing of his own best interests cannot be affected by whether a parent happens to adhere to one particular belief, or another, or none. I have the utmost respect for the father's religious faith and belief, and for the faith of Islam which he practises and professes. But I regard it as irrelevant to the decision which I have to take and I do not take it into account at all."
In the present case all counsel, and specifically Mr Havers QC on behalf of the parents, accepted and agreed with the correctness of the approach in that paragraph, substituting in the present case the faith of Christianity for the faith of Islam.
"All these cases depend on their own facts and render generalisations tempting though they may be to the legal or social analyst wholly out of place. It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is a genuine scope for a difference of view between parent and judge. In both situations it is the duty of the judge to allow the court's own opinion to prevail in the perceived paramount interests of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of life will be taken for it by the parent to whom its care has been entrusted by nature."
"I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can."
Infertility
Discussion
Benefits
The disadvantages or burdens
A miracle
Outcome
IT IS DECLARED THAT:
(a) following certification by two members of the Multi Disciplinary Team that in all the circumstances prevailing immediately prior to commencing treatment:
(i) the First Respondent's disease demonstrates no more than mild manifestations of her disease; and
(ii) the proposed treatment has approximately a 50% prospect of effecting a cure
(b) with the use of either an unrelated adult donor matched to no less than 9/10 antigens or unrelated cord blood donors matched to no less than 4/6 antigens.