Withdrawal of invasive ventilation, palliative care and a child’s best interests: Arianna Kelly acts on behalf of a child in serious medical treatment proceedings

News Arianna Kelly 26th August 2021

In Guys’ & St Thomas’ NHS Foundation Trust and the Royal Borough of Greenwich v M, F and R [2021] EWHC 2377 (Fam), Mr Justice Cobb considered a joint application by the hospital trust and local authority for approval of a care plan to set ‘ceilings’ of treatment for R, a 14-year-old boy. R had enjoyed a happy life attending school and living with long-term foster carers until the spring of 2021. R had a mitochondrial condition and a number of other serious health issues; his mitochondrial disorder was progressive, and  and suffered respiratory failure in May 2021. He was treated in intensive care and regained some strength while on invasive ventilation, but five attempts to extubate him were unsuccessful for long periods of time. It was estimated that without ventilation, he would likely die within approximately two weeks.

The Trust and local authority proposed a plan whereby, when R was as strong as possible, he would be extubated and supported in a hospice setting, but would not be returned to hospital for further periods of invasive ventilation. Following consultation, R’s foster parents and biological parents agreed the plan; however, serious concerns were raised that R’s biological parents did not understand the plan, and were found to lack both litigation capacity in the serious medical treatment proceedings, with the Cobb J forming a view that there was reason to believe they lacked capacity to consent to the proposed plan.

Per YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam), the application came before the court as an application in the inherent jurisdiction. The application was supported by the child’s guardian, who considered that:

“The plan to move to the hospice affords [R] an opportunity to spend the end of his life in a calm environment, where he will not be subject to the constant stream of uncomfortable medical interventions he would have in hospital. He can be with his loved ones and be supported to have a peaceful, dignified death rather than a potentially traumatic death in the PICU where he may find himself alone.”

The care plan was approved by Cobb J, with provision for the local authority (which held a care order in respect of R) to take future care and treatment decisions in keeping with the spirit of the court’s order.

Arianna Kelly acted on behalf of the child’s guardian, instructed by CAFCASS.

You can read the full judgment here.

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Arianna Kelly