Katie Scott and Mungo Wenban-Smith in Court of Appeal case involving withdrawal of life-sustaining treatment for a child

On 13 July 2016, the Court of Appeal (King & McFarlane LLJ) dismissed a mother's appeal against a declaration made by Parker J at first instance on 20 June 2016 that it was in the best interests of her child for life-sustaining ventilation to be withdrawn: Re A (A Child) [2016] EWCA Civ 759.

This desperately sad case concerned a two year old boy who suffered devastating injuries in a road traffic accident which caused severe brain damage and paralysis below the neck. The treating NHS trust brought the application because its treating team considered that his condition was such that it was difficult or impossible for him to derive benefit from continued life and the burdens of his intensive treatment outweighed any benefits, which they assessed as being limited to extending his life. Despite intensive treatment for seven months, there had been no discernible improvement in his presentation and it was assessed that there was no real prospect of meaningful improvement in the future.

This application was supported by the child's guardian but opposed by the child's mother, who believed that he responded to her voice and touch, and that his condition might improve.

On appeal, the mother submitted that the judge had been wrong to make a finding of fact that the child was in pain; had failed to carry out a proper, detailed and careful balancing exercise in respect of whether continued treatment was in the child's best interests; and had failed to pay sufficient regard to the obligation to protect life.

The appeal was dismissed:

(1) The potential for a reasonable range of professional opinion between the expert neurologists, taken together with the observations of the clinical treating team over many months, meant that it could not be said that the judge was wrong in preferring the interpretation of the treating experts that the physical signs which they had observed were evidence of pain and discomfort.

(2) the Judge had carried out a careful balancing exercise, considering the child's welfare in the widest sense, in accordance with the guidance in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] A.C. 591.

(3) In focusing on the question of pain, there was a real danger of a failure to stand back and consider the child's welfare in its widest sense, including the evidence in relation to the child's progressive brain atrophy and that all the medical experts supported the application, including the neurologist who did not consider that the child was presently suffering pain. Even if the court had concluded that he did not suffer pain, having correctly directed herself as to the law and carefully weighed up all factors relating to the child's best interests in the widest sense, the Judge could not be said to have been wrong in agreeing with all of the experts and with the guardian that the time had come to withdraw treatment other than palliative care.

Katharine Scott appeared for the appellant mother. Mungo Wenban-Smith appeared for the respondent NHS Trust.

To read the full judgment, please click here