Re X (A Child) (No 2): An NHS Trust v X [2021] EWHC 65 (Fam)

Medical treatment and children The applicant, a Jehovah's Witness child refusing blood transfusions, unsuccessfully challenged the conventional wisdom that the court can in an appropriate case overrule the consent or refusal of medical or surgical treatment given by a person who has not yet reached the age of 18.

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[2021] WLR(D) 40B

Family Division

An NHS Trust v X

[2021] EWHC 65 (Fam)B

2020 Nov 18, 19; 2021 Jan 18

Sir James Munby sitting as a High Court judge

Children— Medical treatment— Consent— Gillick-competent child refusing consent to blood transfusion— NHS trust seeking declaration authorising transfusion— Whether child’s consent to or refusal of medical treatment determinative— Whether court to determine best interests of child— Whether “rolling order” for blood transfusions to be made— Family Law Reform Act 1969 (c 46), s 8 — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 3, 5, 8, 9, 14 — Mental Capacity Act 2005 (c 9), ss 2(1), 3(1)

The applicant NHS trust applied for an order that it would be lawful to administer a “top-up” blood transfusion to a child who was almost 16 and who had serious sickle cell syndrome. Although well aware that the court was overriding the child’s strongly held religious beliefs as a Jehovah’s Witness, the judge authorised the giving of the blood transfusion as desired by the treating clinicians on the basis that the court had to take its own decision as to what was in the best interests of a child until the age of 18. Since the applicant was also seeking a “rolling order” to enable a blood transfusion to be administered as and when necessary over the following two years the judge ordered a hearing to determine: (i) whether, following the enactment of the Human Rights Act 1998 and other developments in the law, the consent to or refusal of medical treatment by a capacitous/Gillick-competent minor under the age of 18 ought to be determinative; and (ii) whether it was in the child’s best interests to have further “top-up” blood transfusions in the event of further serious deterioration in her medical condition, and if clinically indicated, until she reached the age of 18. For the child it was contended that the applicant's actions and request for a two-year “rolling order” gave rise to severe and profound violations of her rights guaranteed at common law, under the Mental Capacity Act 2005, and articles 3, 5, 8, 9 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and she sought a declaration that, as a person with decisional capacity, she had the exclusive legal right to decide her own medical care including refusal of consent to blood transfusions.

On the issues—

Held, (1) As was clearly established by the authorities, no child had an absolute right to accept or refuse treatment. As a matter of law, neither the decision of a Gillick-competent child, nor the decision of a child of 16 years old or more, was determinative in relation to medical treatment and there were circumstances in which the decision of such a child could be overridden by the court. The analysis in the leading authorities, which had been consistently followed and applied by the judges down the years, could be summarised as follows: (i) until the child reached the age of 16 the relevant inquiry was whether the child was Gillick-competent; (ii) once the child reached the age of 16 the issue of Gillick competence fell away and the child was assumed to have legal capacity in accordance with section 8 of the Family Law Reform Act 1969, unless shown to lack mental capacity as defined in sections 2(1) and 3(1) of the Mental Capacity Act 2005. However, the presumption of capacity under section 8 of the 1969 Act did not mean that the court could not protect the child under its inherent jurisdiction if it considered the treatment not to be in the child's best interests. The 2005 Act had nothing to say relevant to the medical or surgical treatment of children who were not yet 16, or in respect of children over 16 except where they lacked mental capacity, and thus it had nothing to say about children of whatever age who were Gillick-competent. There was nothing in the 2005 Act, or elsewhere, which threw any doubt on the continued validity of the authorities nor anything which even began to suggest the need for any judicial re-evaluation of what they established. The change for which the child contended in the present case was a matter for Parliament, not the courts. It followed that the child’s application for declarations that (i) she had the requisite decisional capacity to exclusively decide her own medical treatment refusing consent to blood transfusions and (ii) that upon reaching the age of 16 she should be presumed in law to have decisional capacity and, as such, the authority to exclusively decide her own medical treatment including refusing consent to blood transfusions, would be dismissed (paras 2, 53, 55, 57, 58, 69, 76, 84, 104, 162, 163).

In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11Not on Bailii!, CA and in In re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64Not on Bailii!, CA applied.

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112B, HL(E), In re S (A Child) (Child Parent: Adoption Consent) [2019] Fam 177B, Birmingham City Council v D [2019] 1 WLR 5403B, SC(E), R (Bell) v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)M, DC and AC v Manitoba (Director of Child and Family Services) [2009] 2 SCR 181 considered.

(2) The application of the principles established in the leading authorities did not, of itself, involve any breach of articles 3, 8 9, and 14 of the Human Rights Convention and, with regard to article 5 there was at most, a restriction on “liberty of movement” as that phrase was used in article 2 of the Fourth Protocol 4 to the Convention, rather than a “deprivation of liberty” as that phrase was used in article 5. Accordingly, there was nothing in the jurisprudence on the Human Rights Convention which threw any doubt on the continued validity of the leading authorities nor indeed anything which even began to suggest the need for any judicial re-evaluation of what they established (paras 121, 135, 143, 157, 158).

(3) Although the court had jurisdiction to make the kind of contingent, anticipatory or prospective order sought by the applicant trust, determining, inter alia, whether or not a particular treatment was medically required was highly fact-specific and ought not to be subject to speculation or generalisation up to two years in advance, particularly in the case of blood transfusions. Further, there had been no opportunity to test the medical evidence rigorously. The application for a “rolling order” would therefore be refused (paras 165, 169).

United Lincolnshire Hospitals NHS Trust v CD [2020] 4 WLR 95B, Ct of Protection and Guys and St Thomas’s NHS Foundation Trust v R [2020] 4 WLR 96B, Ct of Protection considered.

Claire Watson (instructed by Hill Dickinson LLP) for the NHS trust.

Shane Brady (instructed by Richard Cook Solicitors) for the child.

Victoria Butler-Cole QC and Alexander Ruck Keene ( instructed by Cafcass Legal) as advocate to the court.

Jeanette Burn, Barrister

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