Report No. 196
(33) Portsmouth NHS Trust vs. Wyatt & Others, (2004) EWHC 2247 (Hedley J) (7th October 2004)
The child was born on 21st October 2003 at 26 weeks gestation and weighing about 1 lb. She was placed in an incubator and had, in fact, never left the hospital. She had severe respiratory failure requiring ventilation for most of her first 3 months. She had pulmonary hypertension resulting in damage to the lungs with recurrent urinary tract infection and worsening kidney function. Her heart size was small. There was not much possibility of brain growth. She was experiencing pain. In July 2004, she suffered severe infection and was in ICU in Southampton Hospital. She was assessed there and also at Portsmouth.
(In an earlier judgment dated 30.9.2004, Hedley J held that doctors and hospital must be given anonymity.) The patient required very high levels of oxygen to be able to breath.- not nasally, but by a mechanism which covered her head with a transparent plastic box and from it she received maximum oxygen. This method itself damaged the lungs. She therefore required ventilation. Kidneys were deteriorating, there was no chance of transplant. She could only have dialysis.
Parents wanted treatment to be given. All the doctors felt that artificial ventilation even when required, would not be good for her. The Judge observed that the doctors were bound to follow the guidance by the British Medical Association on 'Withholding and Withdrawing life Prolonging Medical Treatment' (2001 at that time), but that guidance was not binding on the Court though 'entitled to the closest attention and deep respect'.
It was the unanimous opinion of doctors that artificial ventilation, if required at any stage, was in her best interests under ss 2, 3 of Children's Act, 1989 and parental responsibility was recognized. That included the right to consent to or refuse treatment. No one else had it, save the Court, where, as here, its jurisdiction had been invoked.
Hedley J referred to R (Burke) vs. GMC: 2004 EWHC 1874 by Munby J and proposed to apply the law as laid down therein. (As stated earlier, the judgment of Munby J to the extent the Judge held that certain GMC guidelines violated the European Convention, was set aside by the Court of Appeal.) He said:
"This case evokes some of the fundamental principles that undergird our humanity. They are not to be found in Acts of Parliament or decisions of the Courts but in the deep recesses of the common psyche of humanity whether they be attributed to humanity being created in the image of God or whether it be simply a self-defining ethic of a generally acknowledged humanism."
and referred to the 'sanctity of life', 'individual's autonomy', and 'dignity of the human being' as adumbrated by Hoffman LJ in the Court of Appeal in Airedale.
But here, the child had these rights but she was not able to exercise a choice of her own. That was done usually by her parents, but here it could be done by the Court, as to what was in her best interests. But interest encompasses medical, emotional and all other welfare issues (Re A: 2000 (1) FLR 549 (President) and Re S: 2001 Jan 15 (Thorpe LJ).
He said that the "infinite variety of the human conditions never cease to surprise and it is that fact that defeats any attempt to be more precise in a definition of best interests." He referred then to Lord Donaldson MR and Taylor LJ in Re J: 1991 Fam 33 on the balancing exercise by the Court. He stated that it becomes necessary to find out if the condition would become 'intolerable' for the patient so as to require stoppage of treatment in its best interests. He referred to Thorpe LJ in Re A: 2000(1) FLR 549 (at 560).
Hedley J then said: "Given that death is the one experience (other than birth) that all humanity must share, no view of life that does not include a contemplation of the place of death, even in a child, can be complete. As a society, we fight shy of pondering in death, yet inherent in each of us is a deep desire both for oneself and for those we love for a 'good' death. It seems to me, therefore, that in any consideration of best interests in a person at risk of imminent death is that of securing a 'good' death. He then refers to Taylor LJ words in Re J (1991) Fam 33 as follows:
"Despite the Court's inability to compare a life afflicted by the most severe disability with death, the unknown, I am of the view that there must be extreme cases in which the Court is entitled to say: 'The life which this treatment would prolong would be so cruel as to be intolerable' in those circumstances, without there being any question of deliberately ending the life or shortening it. I consider the Court is entitled in the best interests of the child to say that deliberated steps should not be taken artificially to prolong its miserable life span"
"At what point in the scale of disability and suffering ought the Court to hold that the best interests of the child do not require further endurance to be imposed by positive treatment to prolong its life? Clearly, to justify withholding treatment, the circumstances would have to be extreme. I consider the correct approach is for the Court to judge the quality of life the child would have to endure if given the treatment and decide whether in all the circumstances such a life would be so afflicted as to be intolerable to that child. I say "to that child" because the test should not be whether the life would be tolerable to the decider. The test must be whether the child in question, if capable of exercising sound judgment, would consider the life tolerable."
After considering the (i) relevant factors for the purpose of assessment of her best interests, (ii) the views of the parents and (iii) the guardians' position, Justice Hedley held:
"Subject to two observations that I wish to make at the end of this judgment, I do not believe that any further aggressive treatment, even if necessary to prolong life, is in her best interests. I know that that may mean that she may die earlier than otherwise she might have done but in my judgment, the moment of her death will only be slightly advanced.
I have asked myself: what can now be done to benefit Charolotte? I can only offer three answers: first, that she can be given as much comfort and as little pain as possible; secondly, that she can be given as much time as possible to spend physically in the presence of and in contact with her parents; thirdly, that she can meet her end whenever that may be in what Mr. Wyatt called the TLC of those who live her most. Although I believe and find that further invasive and aggressive treatment would be intolerable to Charolotte, I prefer to determine her best interests on the basis of finding what is the best that can be done for her.....
I propose to grant relief broadly along the lines contended for by the Hospital and Guardian, although I said that I would put over any argument about the exact wording until I had given judgment. It is not necessary for me to consider injunctive relief or any positive declaratory relief in the light of the conclusions to which I have come on best interests. I say no more than that the former (at least in mandatory terms) is currently precluded by the Court of Appeal decision in Re J (a Minor)(Child Care: Medical Treatment): 1993 Fam 15, whilst the latter raises very considerable practical difficulties.
I said that I had two further observations to make. First this relief is only permissive, it does not relieve them of the right or responsibility for advising or giving the treatment that they and the parents think right in the light of the circumstances as they develop. All it does is to authorize them, in the event of disagreement between the parents and themselves, not to send the child for artificial ventilation or similar aggressive treatment. Secondly, I would like to ask the treating doctors (without in anyway suggesting an answer to them) to give further consideration to an elective tracheotomy on the basis of its possible contribution to Charolotte's palliative care as described by Dr. G."