An NHS Foundation Trust v A, M, P & A Local Authority

Summary: This case from the Family Division which concerned a 15 year old girl is covered here as it sets out some elements of best practice for an NHS Trust when dealing with medical treatment cases; it also gives an opportunity to note a point about the role that the MCA 2005 might play in relation to those under 16.

At the time of the application, the young girl, 'A' weighed just 5 ½ stones and had been in hospital for 10 months. Her weight had become dangerously low because she vomited up to 30 times a day (but not at all during the night). She had been subject to a battery of tests and 3 separate experts had concluded that there was no gastroenterological cause for A's vomiting. A and her mother disputed the view of the experts. There was an emerging concern that A was suffering under a form of fabricated and induced illness. There was evidence that in the absence of immediate intervention A could have no more than around 8 to 12 weeks to live.

The NHS Trust applied for declarations that:

1. It was lawful and in the best interests of A to have a Nasojejunal tube inserted and reinserted on any occasion that it is removed;
2. It was lawful and in the interest of A to receive fluids, nutrition and medications through a Nasojejunal tube;
3. It was lawful and in A's best interest to receive treatment (to include psychiatric, psychological and medication as prescribed by her consultant treating psychiatrist) and assessment by the child and adolescent mental health team.

Mr Justice Hayden made the orders sought. He also suspended contact between A and her mother for the first two weeks of her treatment and made her a ward of court (on the basis that the relationship between the hospital, social services and A had become conflictual and the judge had heard evidence that A required decision making from an independent authority figure).

The judge held that A was not competent to make decisions as to the appropriate course of medical treatment (on the basis of two psychiatric opinions). He commented that if she were an adult and he were applying the criteria of the MCA 2005 he would conclude that A lacked capacity to take the medical treatment decisions.

The judge stated that the starting point in such cases was that there was a "strong presumption in favour of a course of action which would prolong life, but that presumption is not irrebuttable" (Kevin Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554). The judge then set out the 'intellectual milestones' which Wall LJ (as he then was) identified in that judgment:

1. The judge must identify what is in the best interest of the child (an objective exercise);
2. In doing so, the child's welfare is a paramount consideration;
3. The Judge must look at it from the assumed point of view of the patient;
4. There is a strong presumption in favour of the course of action which would prolong life but, that presumption is not irrebuttable;
5. The term 'best interests' encompasses medical, emotional and all other welfare issues.

Hayden J endorsed the preparation of a 'Benefits/Disadvantages Table' for each of the treatment options contemplated (see also the judgment of Holman J in an NHS Trust v MB (A Child represented by CAFCASS as Guardian ad litem) [2006] 2 FLR 319). The use of the table, supplemented by oral evidence, led the judge to conclude that the treatment solution proposed by the Trust was in A's best interest. The treatment options proposed by A and her mother contained far greater risks and fewer benefits. The judge annexed the table to his judgment 'in the hope that it might stand as a template for future practice'.

Comment: The 'Benefits/Disadvantages Table' annexed to the judgment and described by the judge as 'comprehensive in its simplicity' is a useful template for NHS Trusts in medical treatment cases in the COP as well as the Family Division.

As Hayden J noted (at paragraph 13) he was not applying the MCA 2005 because A was below 16 (with the exception of certain decisions relating to property and affairs, no decisions can be taken under the MCA 2005 in relation to those under 16 (s.2(5)) MCA 2005)). In essence, though, he applied exactly the same approach even though the result was cast in the language of competency. We would suggest that this case further highlights the anomalous situation identified (extra-judicially) by McFarlane LJ in 'Mental Capacity: One Standard for All Ages?' [2011] Fam LJ 479, in which he expressed the view that, in his view, there was no reason why the scheme for evaluating capacity should be different as between the two groups of people (i.e. those above and below 16).