Judge: Peter Jackson J
Citation:  EWHC B18 (Fam)
Summary: In these proceedings the Court was asked to consider an application by an NHS Trust for best interests declarations approving a medical treatment plan relating to KH.
KH was a three and a half year old boy. When he was just over a month old he contracted a Herpes virus infection which caused viral encephalitis. As a result, he sustained a serious brain injury and now functions below the level of a new born baby. He had a number of complex additional medical complications, is unable to communicate and was entirely dependent on his foster carer.
The medical treatment plan at issue provided that life sustaining treatment should be withheld from KH when (as inevitably it would), his medical condition deteriorated on the basis that it would not be in his best interests aggressively to treat him in those circumstances. The plan was supported by the Trust and his foster carer. His parents lacked capacity to make decisions about his medical treatment and were represented in the proceedings by the Official Solicitor. They were unable to support the plan fully. The plan was opposed by the Children’s Guardian and the Local Authority who were unable to support a medical treatment plan which proposed to withhold life sustaining treatment.
The NHS Trust invited the Court to declare that it was lawful and in KH’s best interests “to have medical treatment withheld in the circumstances as described in the attached Advanced Care Plan.”
In his judgment, Peter Jackson J summarised the state of the law in relation to the withdrawal of or withholding of medical treatment from children, endorsing in so doing the guidance produced by the Royal College of Paediatrics and Child Health upon “Withholding or Withdrawing Life Sustaining Treatment in Children: A Framework for Practice” (Second Edition) May 2004. He also indicated that he found some guidance as to how best to approach the question of the “best interests” test applicable by reference to s.4 MCA 2005 (although it had no legal application with regard to the Court’s inherent jurisdiction in this regard).
As regards the fact that KH’s parents lacked litigation capacity, he had this to say:
“10. In this case, KH’s parents have been found to lack litigation capacity and it is understood that they are to be represented by the Official Solicitor as next friend. In these circumstances it is submitted that to be consistent with the Mental Capacity Act 2005 as amended, and in particular section 4(6) of that Act, regard should be had to the parents’ wishes and feelings, but only to the extent that these relate to KH’s best interests, which are for the Court to assess objectively. As stated by Holman J at 8x) above, ‘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’. A fortiori, this caveat must apply more forcefully to the views or wishes of parents without capacity who are not themselves looking after the child in question. The Official Solicitor, acting as litigation friend for KH’s parents, should of course seek to advance a position in the ‘best interests’ of KH’s parents rather than KH himself. It is important to note, therefore, that whilst the Official Solicitor’s views in this regard may well elide with the ‘best interests’ of KH, there is this distinction to be made. This contrasts with the Official Solicitor’s usual role in Court of Protection proceedings, where he seeks to advance P’s best interests (rather than those of other Respondents to such proceedings).
16. My only other comment relates to the statement in paragraph 10 of Mr Hallin’s summary that: ‘A fortiori, this caveat [i.e. the irrelevance of the wishes of others, save to the extent that they cast light on objective best interests] must apply more forcefully to the views or wishes of parents without capacity who are not themselves looking after the child in question.’ I readily accept that an involved and capacitous parent may be better placed to express views that assist in assessing best interests than one who is less involved or capacitous, but that is a matter of evidence and not one of principle. Parents who lack capacity may still make telling points about welfare and it would be wrong to discount the weight to be attached to their views simply because of incapacity. It is the validity of the views that matter, not the capacity of the person that holds them. In the present case, I have not discounted the views of the mother on the ground that she is represented by a litigation friend (the Official Solicitor) who does not oppose the declarations sought by the Trust, but have tried to approach her views on their merits.”
Peter Jackson J held that it was appropriate that the matter had been brought to Court whilst KH was in relatively good health such that the issues could be fully explored in a way which would not have been possible if the parties had waited until he had deteriorated and been forced to make an urgent application. However, the corollary of that approach was that the medical issues had not fully crystallised. He went on to hold that there were difficulties with the request that the Trust had made, as the Court’s function was to make decisions about specific issues on the basis of a factual substrata. Accordingly, open ended declarations should be avoided by Judges as they might need to be revisited in the future: Wyatt v Portsmouth Hospital NHS Trust  EWCA Civ 1181 at paragraphs 117 and 188 per Wall LJ. Accordingly, his approach was to identify the treatment issues that needed to be determined and that were not likely to change over time and in respect of which declarations can be made.
On the facts of KH’s case, those treatment issues were clear as his condition was well understood, the scope for improvement was almost nil, and the prospect and manner of deterioration was inevitable. Had there been a major issue over which there was uncertainty, it would not have been possible to resolve it in theory ahead of it crystallising in reality.
Comment: This case provides a useful overview of the current state of the law in relation to withholding life sustaining medical treatment from children, as well as a careful analysis of the approach to be adopted where one or more parent is (because of their own difficulties) unable to act for themselves in such proceedings. As such, it serves as an interesting counterpart to the Strasbourg decision in RP, discussed elsewhere in this newsletter. We would also suggest that the dicta “[i]t is the validity of the views that matter, not the capacity of the person that holds them” are dicta that are of general application, rather than confined to the specific instance of the case before Peter Jackson J.
The case also serves to highlight the difficulties in ensuring an appropriate balance between bringing an application before the Court timeously and waiting until such time as the medical issues have crystallised. In this regard, practitioners should note the approach the Court took to the declarations that were sought and, specifically, the focus on treatment options as opposed to the granting of an open ended declaration.