Guy's And St Thomas' NHS Foundation Trust v A & Ors

Summary

Following Re: A (Withdrawal of Treatment: Legal Representation) [2022] EWCA Civ 1221, a second full hearing was held in the of the tragic case of baby ‘A’ who at the age of 9 weeks had been found floppy and unresponsive at home. By the time the paramedics had arrived he was in cardiac arrest.  He was admitted to ICU and provided with mechanical ventilation after suffering a catastrophic brain injury.

Brain stem testing was performed on 17 to 19 June 2022 and death was declared on 19 June 2022. Baby A’s parents did not consent to the discontinuance of mechanical ventilation and so the matter was brought before the Court. The first trial was heard by Hayden J. This judgment was overturned by the Court of Appeal and the summary can be found here. The matter was listed back in the Family Division of the High Court and came before Mr Justice Poole. 

The Judge identified three unusual features of the case:
(i)    First that A had been found in June 2022 to have met the tests for brain stem death but in early July 2022 he started to breathe intermittently. The tests for brain stem death were from that time therefore no longer met but had the court determined the Trust's initial application on the evidence available before 1 July 2022, it may well have declared that A was dead.

(ii)    Secondly that legal proceedings had been protracted by the amendment of the application (arising from the fact that Baby A no longer met the tests for stem death) and then the appeal. 

(iii)    Thirdly, that investigations into A's injuries had raised concerns that they may have been inflicted non-accidentally. 

After a careful and detailed consideration of both the factual evidence, the expert evidence and the legal framework, the Judge concluded that baby A had suffered a catastrophic brain injury which had resulted in an irreversible loss of a significant amount of brain tissue; that there was no detectable electrical activity in his brain; that MRI scans showed the devastating extent of his brain damage; and that it was virtually certain that he would not recover consciousness. The court therefore concluded that treatment was futile in the sense that it would not bring about any improvement in baby A's condition and would not bring about a return to consciousness. The Judge however went on to carry out a best interest assessment, concluding (with little hesitation), that the burdens outweighed the benefits of his current life. The Judge therefore concluded that it was not in baby A’s best interests to continue receiving mechanical ventilation.

Comment

One of the interesting parts of this judgment is the path taken by the Judge in relation to findings of fact about whether baby A experienced pain, or whether ‘to avoid a binary determination and to carry forward both the probability that A does not feel pain and the possibility that he does feel pain into the best interests assessment.’ [para 62] What the Judge did, was to (a) make a finding of fact on the balance of probabilities that Baby A ‘has no awareness of pain or discomfort’ [para 64] and (b) resist the calls to determine on the balance of probabilities (on the basis that such a finding was ‘not necessary’) whether or not baby A had a reflex response to pain. Instead the Judge found was that some vestigial reflex responses to pain or discomfort, for example, when suctioning takes place could not be excluded. He proceeded on the basis that it was legitimate for the court ‘to feed possibilities as well as probabilities into a best interests assessment’ feeding into the best interest assessment of baby A’s situation, a finding of fact that baby A had ‘no conscious awareness of pain (on the balance of probabilities) but may have a vestigial reflex response to pain.’ [para 65] This led the Judge to take the burdens of treatment into account ‘even though they probably did not cause pain or discomfort to baby A of which he is aware.’ [para 66]

The Court’s approach, that it was not necessary to make a finding of fact on the balance of probabilities regarding baby A’s reflex response to pain, appears to have been predicated on the basis that there was no disputed evidence on this point – the Judge describing the weight of evidence as being at one on this issue – and that a finding was not required in order to resolve a crucial issue.