View source for FLW NHS Trust v Baby X (2012) EWHC 2188 (Fam), (2012) MHLO 99

'''NHS Trust v Baby X [2012] EWHC 2188 (Fam)'''

Proceedings under the inherent jurisdiction concerning withdrawal of treatment (other than palliative care) to a baby with profound and irreversible brain damage

Hedley J considered the question of whether a baby ('X') should be removed from a ventilator and made the subject of palliative care, which would inevitably result in X's death within minutes or hours. X was born in June 2011 and in May 2012 suffered a catastrophic accident at home (there being no suggestion whatever of culpability of either parent) which resulted in profound and irreversible brain damage. The treating hospital staff concluded that it was no longer in X's best interests to remain on a ventilator. This position was opposed by the parents for three reasons: (1) they believed X should be given every chance to improve, however unlikely it appeared at present, (2) they believed X was showing discernible signs of improvement and (3) their faith preventing them from consenting, under the circumstances, to a course which would result in the child's death.

Hedley J briefly summarised the law, which is set out in the case of Wyatt v Portsmouth NHS Trust [2006].  Section 1(1) of the Children Act 1989 applies and the child's welfare is the paramount consideration. In Wyatt, the Court of appeal identified six "intellectual milestones" which must be reached:

i) The Judge must decide what is in the best interests of the child.

ii) In doing so, the child's welfare is a paramount consideration.

iii) The judge must look at it from the assumed point of view of the patient.

iv) There is a strong presumption in favour of the course of action that would prolong life but that presumption is not irrebuttable.

v) The term "best interests" encompasses medical, emotional and all other welfare issues.

vi) The court must conduct a balancing exercise in which all relevant factors are weighed.

Hedley J held that the above considerations were "all the requisite legal authority and guidance for the formulation of [the Court's] decision".  In so saying, he did not wish be taken as being in other than full agreement with the legal analysis of Holman J. in NHS Trust – v – MB and B [2006] EWHC 507 (Fam) at para. 16.

X's treating consultant stated that X lacked any awareness of his surroundings, was comatose and showed no interaction with his parents' voices. All of the doctors in the case agreed that it was highly improbable that X would make any discernible improvement. A Dr Peters gave evidence that he had never seen a child survive from the position in which X was. All agreed that there was no objective evidence that he felt or responded to pain (although this could not be excluded as a possibility and were surgery to be performed, general anaesthetic would be used.

The only positive proposal came from Professor Vloeberghs who advised a tracheostomy on the basis that might allow care in a home or a hospice. However Hedley J found that what set Professor Vloeberghs apart from the other medics was the weight which he gave to the views of the parents.

The parents' evidence (which Hedley J described as "impressive and moving" was that there had been signs of improvement in X's condition and voluntary responses and movements. However, the medical evidence was that there could be changes in X's conditions, but they could not be described as improvements and the parents may have mistaken as voluntary responses those which were in fact caused by the brain injury. Hedley J preferred the medical evidence.

The NHS Trust therefore submitted that treatment would be futile and it would be in X's interests for it to be withdrawn. The parents argued that, given that X did not experience pain, "with so slim a list of burdens, the priority of saving life should prevail…" [para. 22].

Hedley J stated that he had "pondered long and anxiously" over the case and concluded that X's welfare required his removal from ventilation. He took into account that the desire to preserve life was the proper starting point; that X was unconsciousness or unawareness of self, others or surroundings; the evidence that any discernible improvement is an unrealistic aspiration; that X had an ability to continue for some time yet on ventilation (but balanced that with the risk of infection or other deterioration);  that the treatment was persistent, intense and invasive and the treating consultant's view that X shows no desire to live or capacity to struggle to survive (although the latter was not a significant factor).

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers