Birmingham Women's and Children's NHS Foundation Trust v JB
Summary[1]
In Birmingham Women's and Children's NHS Foundation Trust v JB [2020] EWHC 2595 (Fam), Hayden J provided an important clarification regarding MacDonald J's judgment in Barts Health NHS Trust v Raqeeb [2019] EWHC 2530 (Fam) in relation to the evaluation of a child's best interests in the context of medical treatment.
The application was brought by the NHS Trust in relation to a 12-year old young person, J, who acquired a severe brain injury for a declaration sanctioning the withdrawal of intensive care and effectively confirming the absence of any alternative procedures that might otherwise be in his best interests.
Hayden J recognised that the case was "of almost unbearable sadness." He had been found with a ligature around his neck on the back of his bedroom door on 28 April 2020, having only been in his room for 20 minutes. His mother administered basic life support before the paramedics arrived and he was taken to hospital.
Whilst J did not fulfil the criteria for brain stem death, he had a profoundly severe neurological injury, which manifested by unconsciousness. He required augmentation by ventilator; and whilst a tracheostomy was trialed, the conclusion was that it was not possible. When the ventilator was disconnected, his muscle spasms would impede regular breathing.
Hayden J emphasised the circumstances of a global pandemic, which intensified the human suffering and included J contracting COVID-19. The consequence of which was that only his mother could visit him for two weeks, which was heartbreaking for his father and other family members.
Hayden J was satisfied that medical treatment was providing no benefit for him, the limited and hypothetical alternatives to ventilation having been explored. The burdens of treatment included irritation, his airway was vulnerable due to loss of cough and gag reflex and he risked acquiring chest infections. He determined that the prospects for J's life were futile: as captured in the evidence of the paediatric intensive care specialist, the professional ethical dilemma was: "I am no longer saving J's life, I am prolonging his death."
In the course of his judgment, Hayden J helpfully confirmed that MacDonald J in Barts Health NHS Trust v Raqeeb [2019] EWHC 2530 (Fam) "did not for a moment intend that a Trust should ever approach an evaluation of a child's best interests, in the context of medical treatment, as secondary to the wishes or religious beliefs of the parents", as had been suggested by commentary in the Medical Law Review. He expanded:
That would subvert the framework of the established law which preserves the interests of the child as paramount. Nor do I believe Macdonald J intended to sever medical 'best interests' from an overall evaluation of the child's interests. Such an approach would be artificial. A true and meaningful assessment of a child's best interests requires a conscientious survey of the wide canvas of his life, in which process the views of his parents concerning matters of faith, culture and more widely will be important but never a determinative factor.
Hayden J considered the views of J's family who were firm followers of the Pentecostal church, however he declined to investigate what J might have wanted for himself in the circumstances in which he was in. He considered that in many cases, the views and wishes of a child aged 12 extrapolated from the facts surrounding the way he lived his life would be appropriate, but the circumstances leading up to his hospital admission left too many unanswered questions.
He was satisfied that he should grant the declaration, because prolonging his present situation risked compromising his dignity and for no identifiable benefit.
Comment
In addressing the commentary on the Raqeeb judgment, Hayden J repeated the authorities of Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554 and Re J (a minor) (Wardship: Medical Treatment) [1991] Fam 33 in relation to the court's approach in evaluating the best interests of a child. The "intellectual milestones" in carrying out that evaluation as laid out in Wyatt are worth restating:
In making that decision, the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the patient (Re J). There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable (Re J). The term 'best interests' encompasses medical, emotional, and all other welfare issues (Re J). The court must conduct a balancing exercise in which all the relevant factors are weighed (Re J) and a helpful way of undertaking this exercise is to draw up a balance sheet (Re A).
Further, the global pandemic coloured the judgment in a number of different ways, which will be equally relevant to cases involving adults:
- The opportunity afforded by "remote hearings" which has meant that judges have been able to "visit" patients to a degree not considered possible in the past.
- The pain and suffering of J's family had only been heightened by the pandemic and intensified the distress due to the visiting restrictions, particularly when J contracted the virus.
- The pandemic presented a stark check on the limits to the growing therapeutic possibilities of medical science in eliminating disease and prolonging people's life span.
