Judge: Court of Appeal (McFarlane and King LJJ)
Citation:  EWCA Civ 759
This appeal arose following an application made by an NHS Trust to withdraw life-sustaining treatment, in particular, to remove respiratory support by a ventilator from a patient with the inevitable consequence that the patient would quickly die thereafter.
The case concerned a little boy (A), aged 2 years 8 months, who suffered a road traffic accident. A suffered grave injuries including a spinal cord injury and hypoxic brain injury. He was tetraplegic and could not feel anything below the neck. He could not see and, whilst the circuit of his hearing was intact, he was unable to process this into functional hearing. He did not respond to any command, noise or sight. He had no spontaneous respiratory effort, no limb movement, no response to painful stimuli, no cough reflex and weak gag responses.
A’s mother could not accept the medical evidence as to A’s current level of responsiveness. She believed that he responded to music, that when he curled his hands it was a sign of pleasure rather than a reflex movement and that there might be some functional vision. She believed A responded to her voice. All the doctors said that the mother was mistaken in her belief.
A remained in pediatric intensive care since the day of his accident and received 24 hour one to one nursing care. His life expectancy was uncertain by limited. A had suffered three episodes of ventilator associated pneumonia and multiple urinary tract infections. It was common ground that A would have repeated episodes of pneumonia and, at some stage, his pneumonia would be so severe that he would not be able to be ventilated and will die.
Given the extent of A’s injuries and his poor prognosis, his treating clinicians had discussed with A’s family the possibility of the withdrawal of life sustaining treatment. A’s father agreed to the withdrawal of life support because he felt that A was suffering from intensive care intervention. A’s mother did not agree to the proposed course of action and wished the continuation of full intensive care. It was against this backdrop that the NHS Trust made an application to court for a declaration that it would be lawful and in A’s best interests to remove his respiratory support.
When the matter came to trial, the three doctors who were called to give evidence, and the children’s guardian, were each of the view that A’s best interests could only be served by discontinuing life sustaining treatment. If the declarations were not made, it would be desirable to move A to a neurorehabilitation unit for long-term care. This in itself would require surgery to allow A to be ventilated through a tracheostomy tube as his current form of ventilation through a mechanical ventilator could not be used outside an intensive care unit. In addition, a gastrostomy PEG would have to be inserted to allow A to be fed directly into his stomach. The medical team considered that such invastive procedures to be wholly contrary to A’s best interests and, in the event, given A’s clinical presentation in the last few weeks, it would seem that any attempt to transfer A to a rehabilitation unit was out of the question.
The judge at first instance, Parker J, granted the declarations sought by the NHS Trust and declared that it was lawful and in A’s best interests to remove his respiratory support by extubating him and, if he becomes unstable, not to reintroduce his respiratory support again but instead generally to furnish pain relief or sedation and nursing to ensure that A suffers the least distress and pain in the manner of his dying. The mother appealed to the Court of Appeal on three grounds:
The Court of Appeal dismissed the mother’s appeal on all three grounds.
In relation to the judge’s findings on pain, the Court of Appeal recognised that this was an area of medical disagreement. Two of the doctors believed that A’s physical manifestations observed by the treatment were clinical responses to pain or discomfort. One of the doctors considered that those parts of A’s brain that process pain were demonstrably injured on the MRI scan, and not working on an EEG, which led the doctor to believe that A did not feel pain and was not in distress. The judge, having seen and heard all the evidence, had to choose between what was undoubtedly a “reasonable range of professional opinion.” It could not be said that the judge was plainly wrong in preferring the interpretation of the two doctors who had observed commonplace signs associated with pain and discomfort.
In any event, the Court of Appeal found that even if the judge had been wrong about A’s ability to feel pain and discomfort, the judge had correctly directed herself as to the law and weighed up with care all the relevant factors to inform A’s best interests in the widest sense. It could not be said that the judge had been wrong in agreeing with all of the experts and A’s children’s guardian that it the time had come to withdraw A’s life-sustaining treatment.
This is a very unusual appeal in that it directly challenged the findings of a trial judge as to the specific condition of and sensations experienced by the subject of a medical treatment application. We report it because, notwithstanding that it related to a child, A, the Court of Appeal drew heavily from the case law established under the Mental Capacity Act 2005 when considering and assessing A’s best interests. In particular, central to the Court of Appeal’s approach was the Supreme Court decision in Aintree Hospital NHS Foundation Trust v James  UKSC 67. The Court formulated the test to be applied as “what is in the best interests of the child at the particular time in question, having regard to his welfare in the widest sense, not just medical, but social and psychological?” The Court of Appeal highlighted a real danger of failing to stand back and consider A’s welfare in its widest sense. In this particular case, almost all of the evidence related to the issue of “pain” and disproportionate emphasis had been placed on this one item which, although relevant, did not go to the heart of the decision.
Importantly for practitioners, the Court of Appeal cautioned against applying a too rigid and mechanistic approach when using a balance sheet. King LJ was “well aware of their value.” However, endorsing concerns expressed by McFarlane LJ in Re F (A Child) (International Relocation Cases)  EWCA Civ 882, she noted that:
The courts have long recognised that in disputes in respect of serious medical treatment the matter should be brought before the court. See for example NHS Trust v SR Radiology and Chemotherapy  1 FLR 1297. At the end of the day, as was emphasised by Baroness Hale in the Aintree case, the test to be applied by the courts in such cases is simply this: what is in the best interests of the child at the particular time in question, having regard to his welfare in the widest sense, not just medical, but social and psychological? Too heavy a focus on a balance sheet may, as was recognised by McFarlane LJ, lead to a loss of attribution of weight.
That message applies more widely to best interests’ decision-making generally, not just in highly sensitive medical treatment cases. As McFarlane LJ emphasised in Re F (and Hayden J has made clear is also the case under the MCA), “[i]f a balance sheet is used it should be a route to judgment and not a substitution for the judgment itself.”